Employers in the Greater Toronto area and throughout Ontario should know the risks of not properly investigating a complaint made by an employee in the workplace. There is risk whether the complaint is regarding some type of harassment from a co-worker or superior, unsafe working conditions, or anything else that could potentially result in further legal action. While workplace allegations can be stressful and time consuming, it is vital to have them thoroughly investigated so the situation can be resolved. If you are considering a third-party external investigation, call Bridge Legal & HR Solutions at (647) 794-5442.
As an employer, what should you not do during a workplace investigation?
Do Not—Delay a Workplace Investigation
Never delay a workplace investigation. In 2009, an employer’s responsibility to investigate workplace harassment and workplace violence was expanded when the Ontario Occupational Health and Safety Act (OHSA) was amended. Employers are required to have policies in place regarding how complaints made by employees will be investigated.
Employers should never delay investigating employee complaints of discrimination, sexual harassment, or other misconduct in the workplace. In order to avoid possible legal action and liability, an investigation should begin as soon as reasonably possible after an incident of harassment is brought to the employer’s attention. The individual(s) charged with investigating the matter must begin working immediately to get to the facts and resolve the issues. In many cases, a thorough and unbiased investigation requires trained third-party workplace investigators.
Do Not—Avoid Training Supervisors on Retaliation
Employees have a right to make their employers aware of situations they perceive as discrimination or harassment and any retaliation against employees for making a complaint is unlawful. When a complaint is made to human resources or someone in a managerial position, it must be taken seriously regardless of whether the complaint is ultimately determined to be substantiated. Sometimes employees perceived actions to be retaliatory even when this was unintentional, for example when an employee is put on a paid leave pending the outcome of an investigation. Be sure to avoid retaliation (or the perception of retaliation) at all costs.
Do Not—Treat Employees Unfairly
An employee who makes a complaint (the Complainant) or is the alleged perpetrator of harassment or misconduct (the Respondent) must be treated fairly during a workplace investigation. Regardless of the ultimate outcome of an investigation, the parties are entitled to procedural fairness. If an investigation is found to be unfair to one or both parties, the investigation may be considered insufficient by a court or tribunal. Employers must act in good faith during a workplace investigation to avoid errors, such as failing to:
- Gather all facts before making a quick judgment
- Be honest and transparent with the employee being investigated throughout the process
- Provide the details of the allegations to the Respondent
- Provide adequate opportunity for the Respondent to respond
- Consider computer records, surveillance, or other evidence that may be relevant to the investigation
Employers sometimes make these common mistakes when rushing to judgment or out of fear of providing too much information to Respondents. Employees whose actions are being investigated must be treated fairly. Otherwise, there could be legal repercussions, additional investigations, added expense, and more. If you have concerns or questions, Bridge Legal & HR Solutions may have the answers.
Do Not—Allow Bias in Workplace Investigations
It can be challenging for any investigator to be completely neutral and unbiased in a workplace investigation, although this is arguably easier for an external workplace investigator. There are situations in which an internal investigator may find themselves struggling with bias, such as when the alleged perpetrator of the harassment is a longtime co-worker or even a friend. Additionally, internal investigators may be familiar with the parties, and may have pre-conceived ideas regarding their character which may subconsciously impact the investigator’s findings. An external investigation is often the most beneficial and impartial way to proceed for all involved.
Do Not—Bypass Interviewing Witnesses
While the Complainant and the Respondent must be interviewed, it is also critical to interview others in the workplace who were witnesses to the alleged harassment or misconduct. The Complainant and Respondent may exaggerate the facts to strengthen their own side of the case, whereas neutral witnesses can be more candid because, in many cases, they have nothing to lose.
Do Not—Fail to Remain Objective
When a workplace investigation is performed internally, it is easy for those investigating to lose objectivity, since nearly everyone forms personal opinions about their co-workers. In the workplace, it is natural to form friendships and generally like some co-workers more than others. An investigator must be capable of putting his or her own personal feelings and opinions aside, or face allegations of bias. Those who are conducting a workplace investigation must remember their role and remain objective. This is one reason many employers choose to use a third-party investigator who can easily remain objective and impartial.
Do Not—Lack Thoroughness
A workplace investigation should be as thorough as possible. Documents (including emails and text messages) that are relevant to the allegations must be thoroughly reviewed in addition to interviewing relevant witnesses. Employers are often in a rush to complete an investigation and may overlook important pieces of evidence. However, a sloppy or incomplete investigation may leave an employer in a worse situation than if there had been no investigation at all.
Do—Schedule a Consultation with Bridge Legal & HR Solutions
What should you do and not do during a workplace investigation? According to Ontario Ministry of Labour, Training, and Skills Development, employers must ensure that an investigation is conducted that is appropriate to the circumstances. These investigations must be objective, be promptly undertaken, be thorough, and maintain confidentiality. If you are in search of an experienced and dedicated third-party investigator, consider reaching out to Bridge Legal & HR Solutions at (647) 794-5442 to discuss your unique situation.