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Q&A: Who may be hired as a third party investigator to deal with workplace harassment complaints?

third party investigatorIn this conference Q&A, we address relevant considerations when choosing a third party investigator.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding workplace harassment complaints and investigations.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

Is there any legislation that dictates who may/may not be hired as a third party investigator?

A:

To provide context for this question, workplace harassment is prohibited by Ontario’s Occupational Health and Safety Act (OHSA) in addition to the prohibition by Ontario’s Human Rights Code where the harassment is tied to a protected ground. Coupled with an employer’s obligation to ensure a safe workplace, the OHSA requires employers to investigate, as appropriate in the circumstances, incidents of workplace harassment upon becoming aware of such incidents through a worker or a written or verbal complaint alleging workplace harassment.

While the legislation requires that the person conducting the investigation should know the applicable laws about workplace harassment and reprisal provisions under the OHSA and should have received information and instruction on the employer’s workplace harassment policy and program, it does not elaborate to specify who may or may not be hired as a third party investigator.

As a result, employers and professionals in the field are left to fill in the blanks with guidance from case law and Part IV of Ontario’s Ministry of Labour’s Code of Practice. Drawing from these sources of best practices, when choosing an internal or external investigator, employers should ensure the investigator is knowledgeable, competent and well trained on how to handle an investigation specifically on workplace harassment and sexual harassment. Moreover, the investigator should be sufficiently removed from the alleged harasser’s direct control in order to conduct an impartial and objective investigation.

This is especially important as many of the decisions that have awarded damages against the employer for improper investigations arose from failing to follow and comply with procedural fairness. For example, as seen in Elgert v Home Hardware, 2011 ABCA 112 (CanLii), a biased investigation resulted in a punitive damage award against the employer, prompting the Court to clarify that an investigator’s role is to be impartial, neutral and objective. In awarding punitive damage, the Court reasoned that the investigator had no experience conducting workplace investigations, was a close friend of the complainant’s father, interviewed only one of the complainants and failed to interview relevant witnesses, and had prematurely concluded guilt before speaking to the alleged harasser as his employment was suspended with pay prior to the completion of the investigation.

In contrast, the Tribunal decision in Morgan v University of Waterloo exemplifies that choosing the right investigator can potentially shield employers from liability. Despite the Tribunal’s finding that the alleged harassment did in fact occur, the University was not faulted for arriving at the opposite conclusion and avoided damages for improper investigation because it had taken the complaint seriously, moved the alleged harasser to another location during the investigation and engaged a qualified investigator with expertise in human rights who interviewed all relevant parties and thoroughly documented the process and findings in a substantive report.

Consult The Human Resources Advisor Ontario edition for a more in-depth discussion on compliance and best practices on the topic of workplace harassment complaints and investigations.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

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Ava Z Moradi, JD

Editor at First Reference
Ava Moradi, JD, received a Juris Doctor (J.D.) at the University of Windsor, Faculty of Law in 2014. She is a writer, researcher and editor in employment and labour law at First Reference. She is one of the content editors for The Human Resources Advisor, Ontario, Western and Atlantic editions and a contributor to First Reference Talks and HRinfodesk.
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