Workplace Investigation

Understanding Workplace Harassment, Discrimination, and Misconduct

What Is Workplace Harassment?

Under Ontario’s Occupational Health and Safety Act (OHSA), workplace harassment generally involves a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome. Workplace sexual harassment is also addressed under the legislation.

Examples include repeated insulting remarks, bullying, intimidation, and inappropriate comments or conduct.

Employers must ensure that an investigation appropriate in the circumstances is conducted into incidents and complaints of workplace harassment. They must also comply with applicable requirements concerning written notification of investigation results and corrective action.

What Is Workplace Discrimination?

Workplace discrimination involves adverse treatment connected to a protected ground under applicable human rights legislation.

Ontario’s Human Rights Code protects employees from discrimination in employment on grounds including race, ancestry, disability, sex, sexual orientation, gender identity, age, family status, and other protected grounds.

Examples include discriminatory employment decisions, harassment connected to a protected ground, or failure to accommodate an employee’s disability where legally required.

A workplace discrimination investigation examines the allegations, relevant evidence, workplace practices, and applicable human rights obligations.

What Is Workplace Misconduct?

Workplace misconduct refers to conduct that may violate employment obligations, workplace policies, or applicable law.

Examples include:

• Serious breaches of workplace policies.
• Dishonesty, fraud, or conflicts of interest.
• Insubordination or inappropriate behaviour.
• Bullying, threats, or workplace violence.
• Breaches of confidentiality or retaliation.

A workplace misconduct investigation helps determine whether the evidence supports the allegations and whether corrective or disciplinary action may be appropriate.

Employer Duties Under Ontario’s Occupational Health and Safety Act

Ontario employers have legal responsibilities concerning workplace harassment and workplace misconduct under the OHSA. Maintaining a written policy alone is not sufficient; employers must meet applicable legislative requirements.

Depending on the circumstances, employer responsibilities may include:

• Maintaining workplace harassment and misconduct policies and programs as required by law.
• Communicating applicable policies and procedures to workers.
• Assessing complaints and responding appropriately.
• Ensuring required workplace harassment investigations are conducted.
• Addressing immediate workplace safety concerns.
• Maintaining appropriate confidentiality and investigation records.
• Providing required written information about investigation results and corrective action.
• Avoiding unlawful reprisal against workers who exercise protected rights.

Employers may also have obligations under the Human Rights Code, employment agreements, collective agreements, and other legislation.

When Should an Employer Conduct a Workplace Investigation?

Employers should assess complaints promptly and determine the appropriate response based on the allegations, legal requirements, and workplace policies.

A formal or independent investigation may be appropriate when:

• An employee reports harassment or sexual harassment.
• Allegations involve discrimination or failure to accommodate.
• Serious misconduct or retaliation is alleged.
• Senior management is implicated.
• Multiple witnesses or conflicting accounts are involved.
• Significant disciplinary consequences may follow.
• An impartial external investigator is needed.

Informal complaints should not automatically be dismissed. Although informal resolution may be suitable in some circumstances, it should not replace a legally required investigation.

Our Workplace Investigation Services for Employers

Nanda & Associate Lawyers helps Ontario employers address workplace complaints and manage investigation-related legal risks.

Guidance on Workplace Harassment Investigation

We assist employers responding to allegations of bullying, inappropriate conduct, and sexual harassment. Legal guidance can help identify OHSA requirements, establish an appropriate process, and assess potential corrective measures.

Legal Advice on Workplace Discrimination Investigation

We advise employers dealing with discrimination complaints and human rights concerns, including potential accommodation issues and compliance with the Ontario Human Rights Code.

Selecting an Independent Workplace Investigator

An independent workplace investigator may be appropriate when allegations are serious, senior management is involved, conflicts of interest exist, or an external investigation would improve confidence in the process.

We can advise on investigator selection, investigation scope, and procedural fairness. The investigator should have appropriate experience and be free from disqualifying conflicts of interest.

Legal Guidance on Workplace Misconduct Investigation

We help employers assess allegations involving dishonesty, policy violations, inappropriate conduct, and other employee misconduct. A structured investigation helps establish the facts and supports informed decisions about possible discipline.

Investigation Planning and Review of Findings

We assist employers with complaint assessment, investigation planning, legal compliance, interim workplace measures, and reviewing investigation findings. We can also help employers consider whether training, policy changes, corrective action, or discipline may be appropriate.

The Workplace Investigation Process

The process depends on the allegations and circumstances. A structured investigation generally involves these stages.

1. Assess the Complaint

Review the allegations, identify legal obligations, and determine whether immediate safety measures are necessary.

2. Define the Investigation Scope

Identify the issues, relevant individuals, potential witnesses, and evidence to be collected.

3. Select an Investigator

Determine whether an internal investigator is suitable or an independent investigator would better address concerns about impartiality or complexity.

4. Gather Evidence

Interview the complainant, respondent, and relevant witnesses. Review documents, communications, policies, and other relevant evidence.

5. Provide an Opportunity to Respond

Procedural fairness generally requires that the respondent receive sufficient information about the substance of the allegations and a meaningful opportunity to respond.

6. Assess the Evidence

Evaluate credibility, consistency, corroboration, and context. Workplace investigations commonly apply the civil standard of proof, the balance of probabilities, where applicable.

7. Document Findings and Consider Corrective Action

Record the findings and supporting evidence. The employer can then consider appropriate measures based on the findings, applicable law, and workplace policies.

Procedural Fairness and Confidentiality

Procedural fairness helps ensure that workplace investigations are impartial, credible, and evidence-based.

Good investigative practices include:

• Clearly identifying the allegations.
• Appointing a competent and impartial investigator.
• Giving the respondent a meaningful opportunity to respond.
• Reviewing relevant evidence and interviewing appropriate witnesses.
• Avoiding predetermined conclusions.
• Maintaining appropriate investigation records.

Confidentiality is important, but it does not mean all information can be withheld from everyone involved. Information may need to be disclosed to conduct a fair investigation, meet legal obligations, or implement corrective action.

Our employment lawyer in Ontario can help balance confidentiality, procedural fairness, privacy, and legal compliance.

Common Workplace Investigation Mistakes to Avoid

Poorly managed investigations can increase legal exposure and damage workplace trust.

Common mistakes include:

• Ignoring informal complaints.
• Delaying an investigation unnecessarily.
• Appointing an investigator with a conflict of interest.
• Failing to give the respondent a fair opportunity to respond.
• Relying on assumptions rather than evidence.
• Sharing confidential information unnecessarily.
• Failing to document findings and decisions.
• Taking disciplinary action without assessing the evidence.
• Failing to implement appropriate corrective measures.

Why Employers Need Workplace Investigation Legal Support

Workplace investigations can involve overlapping obligations under employment law, human rights legislation, occupational health and safety law, and workplace policies.

Legal support can help employers:

• Understand applicable legal obligations.
• Determine the appropriate investigation process.
• Assess whether an independent investigator is needed.
• Address procedural fairness and confidentiality.
• Evaluate evidence and investigation findings.
• Consider appropriate corrective or disciplinary action.
• Improve workplace complaint-handling procedures.

How can our employment lawyers help you?

Our workplace investigation legal services include:

• Investigation Planning: Assess complaints and establish an appropriate investigation process.
• Harassment and Discrimination: Advise on workplace complaints and obligations under Ontario’s OHSA and Human Rights Code.
• Independent Workplace Investigators: Help determine whether an external investigator is appropriate.
• Procedural Fairness and Confidentiality: Support impartial investigations and appropriate handling of sensitive information.
• Findings and Corrective Action: Review investigation findings and advise on appropriate responses and disciplinary measures.

Key Takeaways

• Employer Legal Obligations: Ontario employers must investigate workplace harassment complaints as required under the OHSA.
• Workplace Misconduct: Investigations help address harassment, discrimination, bullying, and employee misconduct.
• Fair Investigation Process: Impartiality, confidentiality, and proper documentation are essential.
• Legal Risk Management: Proper investigations help employers manage liability and workplace disputes.
• Employment Lawyer Support: Our Ontario employment lawyers help employers manage workplace investigations with a focus on legal compliance, procedural fairness, and risk management.