Recently, there have been discussions regarding the effectiveness of workplace investigations.
A workplace investigation is a process by which an employer may examine potential issues of workplace bullying or harassment that come to their attention. For further information regarding the process, please see our previous article about the What, Why, When, Who and How of Workplace Investigations.
Granted, workplace investigations may not always resolve the issue(s) at play and may even cause disruption in the workplace, but as with all things, problems only arise when the investigative process is carried out improperly. As such, calling into question the usefulness of workplace investigations as a whole and sweepingly suggesting that employers not carry them out is negligent.
For starters, workplace investigations are often legally required. This is particularly the case when dealing with bullying and harassment under the BC Workers Compensation Act. As of 2013, BC employers are required to have a bullying and harassment policy in place which provides a process for raising complaints about such workplace misconduct.
Federally-regulated employers also have a legislated duty to investigate complaints under the Canada Labour Code (the “CLC”). There are now specific guidelines with the enactment of the Workplace Harassment and Violence Prevention Regulations under the CLC. For instance, employers must acknowledge receipt of an incident within seven days and begin investigating within 45 days. In addition to timelines, the person investigating must be qualified to do so and must be approved by the policy committee of the organization. As well, employers have to offer an alternative to formal investigation referred to as a “conciliation”. Furthermore, the content of the investigation report is prescribed. There are also penalties for non-compliance. As such, not only do federally-regulated employers have little flexibility regarding whether to carry out an investigation but also regarding how to carry out investigations.
In the decision Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, the Court determined that employers have an obligation to investigate incidents when they become aware of them, even when a formal complaint has not been filed. The Court also emphasized that employers cannot rely on a victim’s reluctance to file a complaint to be relieved of their statutory duties. As well, the Court found that even communications that occurred outside of the course of employment can be investigated.
Indeed, if there is eventually litigation, the Courts typically do not rely on the investigator’s findings – they expect the parties to prove their cases from scratch. That said, conducting a proper investigation can deter litigation and can be a beneficial way to gather and assess evidence. It also shows that the employer is meeting their legal obligations, which satisfies CLC requirements and can avoid other types of penalties and damage awards.
Practically, if the alleged misconduct may cause physical or psychological harm to those in the workplace, the employer is obligated to immediately deal with that potential harm and ensure it stops. If an employer delays investigating for a long period of time, it may become unfair to then do so well after the alleged misconduct. Likewise, if an employer does not investigate misconduct, that employer may be found to have “condoned” or accepted that misconduct by silence. It is also critically important that employees have a fair and clear process to raise complaints of workplace misconduct, and that they see the employer following that process promptly. Otherwise, employees will lose faith that the employer will take issues seriously and act on them, which can have serious ripple effects in terms of workplace culture, absenteeism, medical claims, legal claims, and difficulties retaining and keeping talent.
Accordingly, the following are important recommendations that employers ought to consider when conducting workplace investigations:
- Have a complaints policy in place
- Examine a complaint very closely to ensure it provides sufficient particulars to warrant an investigation (e.g., simply saying “X bullied me” is usually insufficient detail)
- Consider using an external independent third-party investigator with proper qualifications and experience
- Review all relevant laws, policies, procedures, codes of conduct, documentation, video and/or audio footage or other records
- Consider very carefully as to whether the allegations warrant placing the Respondent on administrative leave
- Interview the Respondent to obtain their version of events
To conclude, the importance of workplace investigations in fostering a physically and psychologically safe and respectful environment cannot be overstated. Workplace investigations can help to fairly address workplace issues, foster a sense that there is justice and protection in the work environment, and ultimately provide a safer workplace while minimizing legal risks.
This blog provides a general overview, and legal advice should be sought for specific situations. Please contact us to discuss workplace investigations in more detail. We want to help!
