All workers are entitled to a safe and healthy workplace. While it is true that every workplace investigation will have unique issues, circumstances, challenges and outcomes, this overview will provide a base for employers on their responsibilities regarding workplace harassment investigations.

It is important that we understand what workplace harassment is.

The Occupational Health and Safety Act defines workplace harassment as:

a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

b) workplace sexual harassment.

Workplace investigations commence when an employer or third-party investigator is tasked with looking into a workplace issue and coming to a conclusion of facts. Investigations are most often initiated when an employee comes forward with a complaint regarding inappropriate behaviour in the workplace. In many cases they involve harassment, sexual harassment, or discrimination.

You may be wondering, when is workplace harassment investigation required?

Workplace investigations are a legislated requirement for Ontario employers. All workers are entitled to a safe and healthy workplace and employers have an obligation to investigate any incidents or complaints of workplace violence and harassment. 

 Employers should also investigate incidents when:

• It is unclear what has happened.

• It is unclear whether policies have been breached.

• There has been a possible violation to Workplace Harassment or Workplace Violence applicable legislation.

• When it is simply appropriate in the circumstances.

 It is important to mention that employers also have a duty to investigate a harassment complaint even if an employee is no longer with the organization or a significant amount of time has passed since the alleged incident.

But what is an employer’s investigative options and who conducts the investigation?

Internal Investigations are investigations that are conducted by the employer by individuals within the organization who are properly trained in handling such matters, such as a member of the Human Resources department. Internal investigations are generally conducted when the facts are non-controversial and consists of supporting documents that show a breach of company policies.

External Investigations are investigations that are generally conducted by an independent third-party. Employers generally choose this option when the investigation is much more complex, or the facts surrounding the incident are unclear. External investigations are also more commonly seen in unionized work environments.

 Investigations in hybrid and remote workplaces.

Since the COVD-19 pandemic began, the emergence of hybrid/remote work and workplace harassment have become an increasingly urgent problem faced by employers.

Employers with remote workplaces should be prepared to address complaints of virtual harassment. Here are some things to consider when conducting an investigation:

• There is no legal stipulation that specifies interviews must be conducted in-person. Employers can use all available methods in a virtual workplace, such as over-the-phone interviews and videoconferencing (where in-person interviews are not possible).

• Employers should consider and utilize all mediums in an investigation (emails, screenshot of text messages, security video footage, documents, correspondences, and recordings).

• Employers need to ensure the investigation is thorough, timely, and procedurally fair.

• Recognize there is no one-size-fits-all approach, and it is important to be adaptable in your investigation methods.

Importance of procedural fairness in workplace harassment investigations.

Procedural fairness is an employer’s duty to provide all parties involved with a fair investigation that results in both credibility and reliability to its findings. An unfair investigation with procedural elements that favour one party over another can result in serious legal ramifications.

We recommend that employers review the procedural elements of their workplace harassment investigations, and ensure it includes following:

• The complainant has a fair opportunity to make the complaint in both a sensitive and timely matter.

• The complainant has the right to be heard and present their information.

• The employer has a competent and impartial investigator appointed to the investigation (internal vs. external).

• Steps are taken to ensure the complaint is properly understood through appropriate collection of facts, documents, and interviews.

• The respondent has a right to know the contents of the complaint and present their response.

• The complainant and respondent (and possibly witnesses) should have the opportunity to have a support person with them (family or friend).

• Interviewees should be able to review their statements and confirm accuracy for example: any written statements, and dates/times indicated.

• All interviewees are made aware of the entire investigation process, procedures, timelines, and ground rules.

• Privacy of all parties and participants are always protected.

• All parties have the right to know the outcome of the investigation.

• Conclusions of the investigation should be issued in a timely manner.

 Key Takeaways when it comes to workplace harassment investigations:

• Determine whether a workplace harassment investigation is required by legislation or is otherwise appropriate in the circumstances.

• Determine the appropriate investigation option (internal or external).

• Be flexible and adaptable in your investigation methods and collect all relevant correspondence.

• Fulfil your duty as an employer and ensure the investigation meets the threshold for procedural fairness.