It is not uncommon for people to tense up as soon as words of harassment, sexual harassment, bullying, violence or discrimination are uttered in the workplace these days. Must employers investigate every claim? If so, to what extent must it be investigated? These are some common questions we often hear.
As external workplace investigators, we are regularly engaged by employers to conduct workplace investigation as a neutral third party. For this blog series, we will feature some recurring questions we’ve compiled over the years.
An employee shared about a harassment incident they witnessed, is an investigation necessary even though nothing formal has been filed?
The short answer is yes. There can be different ways that employers can learn of an incident. It can be through personal observation, from employees who may have witnessed an incident, mentioned in passing informally by the complainant or through a formal complaint. Under the OHSA, employers have a legal obligation to protect the health and safety of employees and maintain a work environment that is free from any kind of violence and harassment in the workplace (I’ve written about these requirements in past blogs which you can check out for more information). Therefore, as soon as your organization is made aware of an incident or complaint, your duty to investigate is then triggered whereby an investigation “appropriate in the circumstances” is required.
What does an investigation “appropriate in the circumstances” mean?
The OHSA, does not technically spell out what is considered “appropriate” as it can vary depending on the circumstance. Instead, Ministry of Labour (MOL) will consider the following questions in assessing whether an investigation is deemed appropriate.
- Is it timely? Typically, MOL expects investigations to be completed within a reasonable timeframe – 90 days or less, unless there are extenuating circumstances that would warrant a longer timeline (i.e. multiple complaints, involving more than 5 witnesses, complex investigations, parties on leave, etc.)
- Is it objective? The investigator (whether internal or external) is considered neutral who is not involved in the incident(s) under investigation. It is also important that the investigator is not under the direct control of the alleged harasser which would potentially bias the investigation. There should be no conflict of interest or undue influence that exists.
- Is it kept confidential? To the extent possible, disclosure of information about the incident, complaint and identifying information about who is involved is restricted to protect confidentiality. Disclosure can be made on a “need to know” basis in the following instances:
- to properly investigate the complaint;
- if it is necessary to protect employees;
- to help the employer make an informed decision and take corrective action;
- if it is required by law.
- Is it thorough? This means reasonable efforts should be made to gather all sides of the story – from the complainant, the respondent and relevant witnesses (if any). Detailed interview notes should be taken and retained for reference and review. Employers can reference the Code of Practice published by the Ministry of Labour for guidance.
- Is it fair? The Respondent must be given the opportunity to respond to the specific allegations raised and conversely, the complainant should also be given a reasonable opportunity to reply so there is transparency on both sides.
What do you do if the employee asks you not to investigate their harassment concern?
Find out the reason for their reluctance and look for ways to remove any barriers to file or participate. Often times, it may be due to a fear of reprisal. If this is the case, communicate internal policies and employer expectations as it relates to non-reprisal and put measures in place to mitigate such risks to encourage participation. In order to protect the health and safety of all employees, employers have a duty to investigate any workplace violence or harassment allegation(s) as soon as you become aware of an incident. This means that even if the employee is not willing to participate or asks you not to pursue a complaint, you may still be legally obligated to do so according to OHSA requirements.
Can a complainant choose to remain anonymous in a harassment investigation?
In general, the answer is no. The complainant’s identity need to be shared in order to properly investigate the incident or complaint and for the responding party to properly respond to the allegation(s).
Who can conduct a third-party investigation according to the Ministry of Labour (MOL)?
- A human resources professional
- A lawyer
- A licensed private investigator or
- Someone in a business association that holds some other professional designation
Employers have the latitude to decide who they wish to hire and investigate the complaint as long as they belong to one of the above groups of professionals. A recent Ontario Labour Relations Board (OLRB) case, Erin MacKenzie v Orkestra SCS Inc., 2023, reinforced that employers have significant discretion when it comes to choosing who to investigate complaints of workplace harassment. In this case, the complainant disputed the two (2) investigators selected by the employer. A complaint was filed with the MOL and after reviewing the case, the MOL inspector decided that the second investigator chosen can conduct the investigation into the complaint but the Complainant objected and appealed the decision to the OLRB. According to the OLRB’s decision, it clarified that it would only consider appointing a new investigator once an investigation has been completed and there are reasonable grounds for the change pointing to flaws in the investigation process itself. It will not intervene just because of unfounded accusations of conflict and incompetence to disqualify an investigator.
Stay tuned for more FAQs and employer insights in our next blog of this series.
If you are an employer or HR leader looking for assistance in conducting an objective, thorough and trauma-informed workplace investigation, we can help. Contact Strategywise HR at 905-879-9994 for a free consultation.
