Workplace investigations have been
an increasingly important topic for HR Professionals in the past
few years. Employers have a duty to conduct workplace
investigations in response to employee discrimination and
harassment complaints. Failure to investigate or faulty
investigations can expose employers to liability. Ensuring
that workplace investigations are conducted properly is key to
avoiding such liability.
The case law from the Human Rights
Tribunal of Ontario (the "Tribunal") sets out the
criteria used by the Tribunal to assess the reasonableness of an
investigation as follows:
1. Awareness of issue of
discrimination/harassment: The Tribunal will first look to
whether there was an awareness of issues of discrimination and
harassment in the workplace at the time of the incident, whether
there was a suitable anti-discrimination and harassment policy and
complaint mechanism, and whether adequate training had been
provided to management and employees;
actions: The Tribunal will then look to what
happened after the complaint was lodged. Specifically, whether the
employer treated the complaint seriously, whether it dealt with it
promptly and whether it reasonably investigated the allegations;
3. Resolution of
complaint: Finally, the Tribunal will assess whether the
employer provided a reasonable resolution in the circumstances, and
whether the employer communicated its findings and actions to the
Conducting proper workplace
investigations can shield an employer from liability as illustrated
in a recent Tribunal decision, Zambito v. LIUNA Local 183
and Central Eastern Canadian Organizing Fund. In that
decision, the applicant alleged that the respondents discriminated
against him by failing to properly investigate his internal
complaint against his co-worker, who he alleged had made harassing
comments about his nationality and family.
The applicant's internal
complaint was investigated by the respondent's in-house
counsel, who ultimately concluded that both the applicant and the
co-worker had conducted themselves inappropriately.
The Tribunal held that the
investigator had significant expertise, promptly investigated,
interviewed all relevant witnesses, and submitted the completed
report in a timely manner. The results of the investigation were
communicated to the applicant as well as the co-worker, and both
the applicant and the co-worker were provided with a verbal warning
for their behaviour. The Tribunal found that these steps
constituted a reasonable investigation as well as a reasonable
resolution of the applicant's complaint.
This case highlights a few key
aspects of proper workplace investigations:
investigator: In this case the investigator was an
experienced in-house lawyer. Investigations do not need to be
conducted by lawyers in all cases. However, the investigator should
have the necessary skills and experience to conduct the
investigation. In some instances, an internal investigator will not
be appropriate and the employer should seek to retain an external
investigation: Investigations should be conducted
promptly, especially when serious allegations are raised. Not only
could failing to promptly investigate lead to an inference that the
employer is not taking the complaint seriously, ignoring an
employee complaint or failing to take quick action could allow the
situation to escalate.
outcome: The employer should ensure that the
conclusions of the investigation are communicated to both the
complainant and responding party, and that appropriate remedial
action is taken in a timely manner. There is no automatic legal
obligation to share the complete internal report, though production
may be legally required during any ensuing litigation.
Although this blog was focused on
workplace investigations in the human rights context, employers in
most provinces are also required under health and safety
legislation to implement policies that prohibit workplace violence
and harassment (more broadly defined), workplace investigation
procedures, and to train employees on these policies and
procedures. Failure to do so may expose an employer to liability
– even when the issues about which an employee complains
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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As always, our goal is to provide a concise, high-level summary of the most significant legal developments affecting employers from the past quarter, and to provide practical tips and guidance on how to respond to them.
Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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