What is a workplace investigation?
A workplace investigation is a process of interviewing employees (and sometimes other parties) as witnesses, recording the findings, analysing those findings, and making a determination or resolution of workplace problems or conduct. Most often, workplace investigations are complaint driven, whether on account of harassment, sexual harassment, workplace violence, workplace bullying and the like.
When should an employer undertake a workplace investigation?
Obviously, when faced with any workplace complaint alleging harassment of any kind, violence, or bullying, it is prudent to undertake a workplace investigation. However, these are not the only complaints that give rise to workplace investigations. The following is a non-exhaustive list of reasons why an investigation should be conducted:
Harassment or violence
Inappropriate or unprofessional behaviour
A hostile or disruptive work environment or where there has been a threat
Vandalism and other sabotage
Violation of a workplace rule or policy
A safety complaint
Suspected substance abuse
A statutory violation
A workplace dispute
Clearly, the importance of conducting a workplace investigation is not only to ensure statutory compliance, but to discover workplace problems, prevent recurrence, take corrective action and prepare for litigation, mediation or arbitration.
Are "third party" workplace investigations necessary?
The answer is, sometimes, but definitely not always.
Over the last few years, a micro industry of workplace investigation providers has sprung up, partially driven by statutory compliance requirements under the Occupational Health and Safety Act of Ontario, and very much on account of the fears created by large punitive damage awards that Courts have granted employees, as a consequence of poor or insufficient workplace investigations. That said, some human resources personnel, with the guidance of experienced employment law counsel, definitely have the skills and abilities necessary to undertake a proper workplace investigation.
How an investigation is handled is critical. A successful workplace investigation requires planning, preparation, organization, skill, speed and discretion. While the law does not set out exact rules regarding specific do's and don'ts of workplace investigations, at the very least, such investigations must be conducted in a manner that is consistent with the principles of procedural fairness.
Where does the Occupational Health and Safety Act fit in?
The focus of the Ontario Occupational Health & Safety Act (OHSA) is to create an internal responsibility system to ensure workplace safety. Compliance is mandatory, and enforcement begins with investigation by an inspector appointed by the Ministry of Labour. Pursuant to section 55.3 of the OHSA, an inspector from the Ministry of Labour can order an employer to undertake an investigation appropriate to the circumstances. That investigation must be carried out by "an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector." It is also conducted at the expense of the employer, and a written report would be provided to the employer.
An impartial person investigation under section 55.3 of the OHSA may be ordered when:
The alleged harasser is the employer and a person who is internal to the workplace conducting the investigation would be unduly biased or influenced by the alleged harasser's senior rank or position.
The employer and/or organization has not effectively dealt with or addressed workplace harassment complaints in the past (i.e. multiple complaints about the same person or behaviour).
The employer can not ensure that the investigation will be conducted objectively by someone internally.
Who is considered an "impartial person"?
An "impartial person" is someone who is unbiased, with no conflict of interest, and in good standing with their professional body (if applicable). It does not need to be a third-party investigator; however, the inspector will consider the following in determining the necessary criteria:
The level of impartiality.
Knowledge of the workplace harassment and reprisal provisions under the legislation, and other applicable laws such as the Human Rights Code.
Experience in conducting workplace investigations, dealing with confidentiality and privacy in the context of those investigations, preparing comprehensive reports, and dealing with complex and sensitive situations.
Often, internal human resources departments have the skill and ability to undertake these investigations. However, third party investigators should be considered where matters are of such complexity that the requirements of the investigation would tax the current resources of the company, and particularly, to minimize risk. For these reasons, Hyde HR Law is frequently called upon to undertake Workplace Investigations.
Why use a labour and employment lawyer for workplace investigations?
There are many non-lawyer workplace investigators, who do an excellent job. We recommend them frequently.
That said, where workplace investigations are found to be insufficient, it is often on account of the lack of procedural fairness, bias or, lack of impartiality. Hiring a labour and employment lawyer experienced in workplace investigations, minimizes corporate and institutional risk, and protects against damage awards that can, and frequently do, amount to hundreds of thousands of dollars.
What can Hyde HR Law do for my company?
We assist our clients in guiding their human resources personnel through the internal workplace investigation process. Hyde HR Law also undertakes third-party workplace investigations for corporations, institutions, municipalities and charities. Contact us today.