Canada: 5 Key Steps For A Proper Workplace Investigation

Last Updated: May 19 2017
Article by Ryan Baxter

Investigations are a vital – but difficult – part of workplace management. The value of a proper investigation can't be overstated: it plays a pivotal role in the imposition of discipline (and any subsequent challenge to such discipline) and provides an important safeguard to employees' right to procedural fairness. An employer that conducts an improper (or no) investigation leaves itself exposed to potential liability and other negative consequences, including a successful claim for punitive damages, human rights complaint(s), civil legal action or grievance. An effective and fair workplace investigation results in a solid conclusion based on which the employer can take decisive and appropriate action – and preclude negative consequences down the road.

Here are five key steps to conducting a proper workplace investigation.

1. Procedural Fairness

An employer is bound by principles of procedural fairness in imposing discipline, and this generally entails an obligation on the employer to investigate the circumstances before disciplining an employee. Generally, an employer should carry out a workplace investigation whenever there is or may be some form of employee misconduct or inappropriate workplace behaviour – like bullying or harassment – including when there's a complaint under the applicable workplace harassment policy or a law (such as applicable occupational health and safety, human rights and/or employment standards laws). The employer's broad objectives in such an investigation are the opportunity to get the facts straight before confronting the employee(s), give the employee an opportunity to present their version of events and/or explain their conduct, and ultimately verify whether discipline is warranted and if so, the surrounding circumstances (including mitigating or aggravating factors) to assist it determine the appropriate discipline. Every effective workplace investigation, regardless of its nature, must embrace four overarching principles:

Neutrality. Investigators must not have a personal stake in the outcome of the investigation or pre-judge the issue.

Fairness. Employers have a duty to conduct workplace investigations in a fair and impartial manner. "Fairness" depends on the circumstances of each investigation, but at a minimum, all parties involved must have the opportunity to provide all relevant information and to have the investigator consider it.

Thoroughness. Uncover all information necessary to make the proper decision and to ensure that conclusions are supported.

Timeliness. Act promptly to avoid further acts of wrongdoing and impose discipline in a timely manner or risk a successful challenge in a court or arbitration.

2. Framework

Implementing a systematic investigation framework helps ensure the overarching investigation principles are respected and the investigation is properly conducted.

Objective. Ensure both the organization and the investigator are clear about its objective from the outset. This guides the investigator's work and reduces the likelihood the investigation will deteriorate into a fishing expedition and avoid wasted time and resources.

Scope. Determine the scope of the investigation early: limited to factual findings, extends to drawing conclusions and includes recommendations for employer action.

Timing. Over time, memories fade and documents are lost: start and complete the investigation as soon as possible, but strike a balance between a speedy investigation and a thorough one.

Investigator. Promptly decide whether an internal or an external investigator will conduct the investigation. A "staff" investigator can investigate simple and straightforward complaints and avoid incurring costs associated with retaining an external investigator. The employer can retain an external investigator where there's no internal investigator or the scope or the nature of the investigation makes it appropriate, for example where the issues are complex, the allegations are serious, or there's a concern with respect to an internal investigator's neutrality.

3. Preliminary issues

The investigator and employer should address any preliminary issues before embarking on the investigation interviews.

Assessment. Assess the complaint by considering its nature, who's involved, and what workplace policies come into play. The employer should also assess the interim employment status of both parties; if the complainant doesn't feel safe in the workplace, consider transferring them to another area in the workplace or to granting a leave of absence; if the nature of the alleged misconduct causes concern for the safety of others, consider placing the respondent on a paid leave of absence during the investigation.

Employee Concerns. Often, one or more involved employees is reluctant to participate in an investigation. There are a host of concerns they might raise, but ultimately the employer has an obligation to investigate workplace misconduct – and generally the right to insist its employees co-operate, and to (reasonably) discipline an employee for refusing to cooperate (but give them an opportunity to comply first).

Disclosure. Individuals involved are entitled to differing degrees of disclosure before they are interviewed as part of the investigation:

  • Respondent. The respondent is entitled to know that a complaint has been received in which they have been named, the complainant's identity and sufficient detail to allow them to know generally what matters will be discussed in their interview.
  • Witnesses. Witnesses are often the most curious about the investigation but have no rights respecting either privacy or disclosure during the investigation and no need to know the nature of the allegations before their interview.

Privacy. Courts (or arbitrators) evaluating an investigation attempt to balance the employees' privacy interests against the employer's legitimate business interests so both the employer and the investigator must be cognizant of any privacy rights and act accordingly. The parties have a right to privacy and confidentiality; the more sensitive the subject-matter, the more care an employer should take to protect these rights. But there are limits because it's necessary to share certain information during the investigation for the process to be fair and thorough, such as the respondent's right to know the particulars of the case made against them, particularly in a formal harassment investigation. The investigator and the employer must, however, handle the complaint and the investigation in a confidential manner and make every effort to avoid unnecessary, and perhaps inadvertent, disclosure, only sharing information about the facts of the investigation – particularly names of those involved and the subject matter – with those who need to know.

4. Interviews

The interviews are often the most crucial stage of the investigation because the investigator typically obtains most of their information here, and has the opportunity to assess the witnesses' credibility.

Preparing. Advance preparation is key to an interview that yields useful and credible evidence to aid in the investigation:

  • Who. Decide who to interview. Initially, the interviewees might be limited to the complainant and the respondent; others the investigator must interview typically becomes apparent after the initial interviews with the complainant and respondent. The main factor determining who the investigator needs to interview is whether the person has information relevant to the objective of the investigation. There's no requirement to interview everyone the parties put forward; the more witnesses the investigator interviews, the greater the likelihood of compromising confidentiality. Generally, the investigator should interview witnesses to the more significant events indicated in the complaint, not necessarily those with knowledge of more trivial incidents, but should interview any witnesses both the complainant and the respondent name.
  • When. It's common to interview the complainant first, followed by the witnesses the complainant names, then the respondent, followed by the witnesses the respondent suggests, and lastly any required follow-up interviews. But the investigator should remain flexible when deciding the order; the facts or concerns that witnesses might try to falsely corroborate each other's stories might suggest a different order.
  • What. Before the interview, prepare questions based on the understanding of the incident. Generally, the interview should start with "open-ended" questions (ones that don't suggest an answer) to the interviewee to give them the opportunity to provide their own account of the incident and possibly provide new information of which the investigator may not be aware when preparing the questions. Therefore, it can be effective to use a combination of open-ended and closed-ended questions. Inevitably, the witness's answers will lead to additional clarification questions. It's important that the investigator seek very specific details with respect to times, dates, locations, individuals involved, and other witnesses.

Conducting. Conduct the interviews as soon as possible, while memories remain fresh.

  • Team-up. Where possible, two people together should interview each witness to allow better note-taking and to give the employer two witnesses to testify about the interviews if there's a subsequent hearing.
  • Preliminary Matters. At the beginning of each interview, the investigator should: explain the employer has asked them to investigate a complaint or issue brought to the employer's attention; explain they want to learn what, if any, relevant information the interviewee might have; advise they are looking for facts, not personal opinion; describe the nature of the complaint, providing only those details necessary to make the interview meaningful; advise the interviewee the investigation process is confidential and the interviewee shouldn't discuss it or the interview with anyone; and remind the interviewee of the importance of providing honest and accurate responses.
  • Note-taking. Record the date, time and the names of the interviewee and anyone else present at the interview. All interview notes might be admissible in any future legal proceeding related to the complaint, so make all notes and records on the assumption they will be disclosed in the future: they must be credible, comprehensive and comprehensible and avoid any comments or notes that could be construed as prejudging the issue. Get the handwritten notes typed as soon as possible and check the accuracy of the typed version.
  • Interviews. The interview is intended to provide a clear understanding of what happened so the employer can determine what – if any – discipline is warranted, so obtain all relevant information from each party. Before concluding each investigation interview, review the draft interview questions and notes to determine whether they require any further information or clarification from the interviewee.

    • Complainant. Obtain a clear understanding of the complainant's view of what happened before, during and after the incident(s) and whether there were any witnesses and who.
    • Respondent. Assure the respondent the employer is dealing with the complaint as confidentially as possible, and advise the respondent to maintain that confidentiality. If the complaint is regarding a breach of human rights legislation, caution the respondent (and every other witness) that human rights law prohibits any reprisal against the complainant. Disclose the complainant's allegations and any material facts or evidence gathered during the investigation.
    • Witnesses. Advise witnesses about their impartial role in an investigation and provide enough information so the witness can comment on the incidents they may have observed, while limiting information that would reveal names and identities of those involved, if at all possible. Once again, highlight the confidentiality of the investigation. While it is not necessary to share full particulars of the complaint with witnesses, it may be necessary and justifiable to share some information to determine whether the witness has relevant information.
  • Take Stock. Assess the credibility of each witness during or immediately after the interview, noting divergences in the evidence and filling in any gaps to the greatest extent possible. When judging credibility, consider the witnesses' demeanour during the interview, consistency with most of the other evidence and internally, whether the story is logical, is corroborated by other testimony and any possible motive to fabricate an allegation or evidence. This is when the investigator should determine whether they require any follow-up or additional interviews and schedule and conduct them accordingly.

5. Finalize the Investigation

Complete the investigation – conduct all necessary interviews and obtain all relevant documents – as soon as possible:

Factual Findings. The investigator's primary role is to make findings of fact that lead to a conclusion. Often, the employer will draw the conclusion and/or decide the appropriate course of action based on the investigator's findings of fact, though the investigator might do so if directed by the employer. Factual findings in an internal investigation are based on a "balance of probabilities" standard: based on all of the evidence is it "more likely than not" (greater than a 50% chance) the alleged fact actually happened? Consider factors like parties' and witnesses' demeanour and credibility, any corroboration, and the adequacy and consistency of the facts the parties and witnesses allege.

Outcomes. There are three typical outcomes of an investigation: substantiated (the preponderance of the evidence substantiates the conduct or the complainant's allegation(s)), not substantiated (the preponderance of evidence supports the view that the conduct or complainant's allegation(s) couldn't have happened and/or is without a reasonable basis); and inconclusive (the conduct or allegation(s) may have happened but the preponderance of evidence fails to prove they occurred).

Report. It's sometimes appropriate for the investigator to prepare a report. Regardless of its form and remembering it could become evidence in further legal proceedings, the report should present all the relevant information identified during the course of the investigation; analyze it; containing findings of fact, and, if the investigator is charged with making a determination, their conclusions. The employer is generally not obligated to providing a copy of the final report to the parties or to anyone else, and ideally circulate it only among the final decision-makers to protect confidentiality and the possibility that it's privileged and not subject to disclosure in any legal proceeding.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions