Recent changes to the law however have totally changed the legal landscape relating to workplace investigations.
To reduce legal exposure and save costs, I believe most employers should ensure that at least one employee receives workplace investigation training.
This blog discusses four scenarios where workplace investigations are required or recommended.
Workplace harassment complaints
Under the Ontario’s Occupational Health and Safety Act (OHSA), an employer is required to investigate any incident or complaint of workplace harassment.
The investigation must be conducted by someone who has received information and instruction on how to conduct an investigation appropriate in the circumstances. This type of complaint can arise when an employee believes that her supervisor is bulling her. Workplace harassment is defined to include workplace sexual harassment.
Failure to investigate or appointing an untrained investigator could result in the Ministry of Labour ordering the employer to hire an external investigator at the employer’s expense.
Human rights complaints
An employer or a manager cannot discriminate against or harass an employee because of the person’s gender, race, age, disability or 12 other personal characteristics.
If an employer does not have an internal investigation procedure then an employee is much more likely to file a complaint with the Ontario Human Rights Tribunal where the person can be awarded significant damages.
Did you know that an employer can be ordered to pay damages for failing to conduct an adequate investigation even if the adjudicator concluded no discrimination took place?
Workplace investigations into employee misconduct
In most cases, I suggest that an employer investigate allegations of employee misconduct before disciplining an employee and this usually means providing the employee with an opportunity to respond to the allegations against them.
Courts have recently started ordering employers to pay punitive damages for conducting faulty investigations.
Investigations into workplace accidents
In workplaces with 20 or more employees, a joint health and safety committee is required to investigate workplace accidents where a worker is killed or critically injured and report their findings to the Ministry of Labour.
It is important to carefully consider the scope of these investigations because the Ministry of Labour can charge the employer with violations of OHSA in connection with these accidents. Fines of over $50,000 are not uncommon for accidents that cause relatively minor injuries.
Internal or external workplace investigations
I suggest that you speak with your employment lawyer before deciding whether to use an internal investigator or an external investigator when a workplace investigation is required or recommended.
Internal workplace investigations
For cost and other reasons, most employers prefer to use an internal investigator as opposed to an external investigator, where possible. Given the potential legal liability associated with a faulty internal investigation I suggest that most employers make sure that at least one employee obtain workplace investigation training.
Workplace investigations training
On February 1 and 6, 2017, I am conducting workplace investigation training with Monica Jeffrey of JMJ Workplace Investigation Law in Barrie and Toronto, respectively. The cost is $399 plus H.S.T. for the day and registration is limited to 16. Monica and I will be taking participants through a simulated workplace harassment investigation so attendees can learn by doing.