Workplace investigations are appropriate in certain circumstances, legislatively mandated in some circumstances, and “expected” under the common law in some situations.
For example, human rights jurisprudence has effectively established that an employer has a positive duty to investigate allegations of harassment and discrimination based upon a prohibited ground of discrimination (e.g. sex, ethnicity, age, etc.). Indeed, the Human Rights Tribunal of Ontario has awarded monetary damages against employers for failing to respond properly to and investigate complaints – even in circumstances where the applicant was unable to make out a violation of the Ontario Human Rights Code itself.
In 2009, Ontario’s Occupational Health and Safety Act (“OHSA”) was amended to include protection against “workplace harassment” and workplace violence, and the requirement of the employer to prepare and implement a policy on how employee complaints will be investigated.
In addition to legislation, wrongful dismissal jurisprudence (i.e., court cases) have held that workplace investigations must be “fair” (i.e., there must be procedural fairness). Therefore, an unfair investigation – or no investigation at all – could be considered a “constructive dismissal”, could lead to an employer losing a “just cause” case, and could even attract additional damages (for example, moral or punitive damages).
David Ertl is a certified workplace investigator. Call us if you need:
A) a workplace investigation conducted;
B) advice on an upcoming / on-going investigation; or
C) training on how to conduct a workplace investigation.
I’ve received workplace investigation training before, but as any HR person knows, there is always something that comes up during an investigation that confounds. I feel relieved that if something arises, I can pick up the phone and speak with David or Andrea to understand the obstacle, tackle it and move on. I’ve just never dealt with counsel that is as approachable and helpful as David and Andrea.
– HR MANAGER, ACCOMMODATION & FOOD SERVICES, WINDSOR
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