What Rights do Employees Have During a Workplace Investigation? 

Serious woman looking at camera behind a desk in a white shirt

While some workplace issues – such as allegations of harassment or bullying – generally require notice to the respondent when the investigation starts, other issues may require a more covert workplace investigation. Allegations of fraud, theft, or dishonesty  could trigger an investigation in the workplace. Many employees wonder: Can an employee be investigated without formal notice? While you may think that employees have similar rights in a workplace investigation as in a criminal investigation, the answer may surprise you. If you have questions about workplace investigations, talk to Bridge Legal & HR Solutions at (647) 794-5442.

Workplaces Must Respond to Allegations

All workplaces in Canada must follow the laws of their jurisdiction, be it provincial legislation or the Canada Labour Code for federally regulated workplaces. In Ontario, the Occupational Health and Safety Act (OHSA) states that employers must have policies in place regarding how employee complaints of harassment and violence will be handled. After an employee makes an allegation of harassment or violence, it will trigger a workplace investigation.

The employer has a choice of using internal staff to investigate or using a third-party investigator. The first step of the process will be to gather relevant evidence, including speaking with the person alleged to have engaged in the problematic conduct (the Respondent). Are there any situations where a respondent can be investigated without notice? Here are a few points to consider. 

When is notice required?

Employers in Canada should ensure a thorough and fair investigation when workplace allegations are brought forward. But what rights does an employee have when under investigation? Many workers believe they have the same rights in a workplace investigation as they would in a criminal investigation. This is not the case, however. With an internal investigation, employee rights are often limited by the company’s written policies (subject, of course, to basic fairness requirements). With respect to harassment investigations, for example, there is no standard right for a respondent to know who made the allegations against them. If the employer’s harassment policy allows for anonymous complaints, and if it is possible to provide the respondent with sufficient information to allow them to respond without providing the name of the complainant, the investigation could proceed to completion without the complainant’s name being released. This could occur in a situation where the respondent is alleged to have made problematic comments at a meeting in front of a large group of people, one of whom subsequently makes a complaint.  Even in the case of an anonymous complainant, however, respondents in a harassment investigation must be given notice that the investigation is occurring, and be given a fair chance to respond.

In other cases, it might be necessary to begin an investigation without giving the employee being investigated notice that the investigation is occurring. For example, if an employee is alleged to have stolen company funds, relevant data may have to be retrieved from their computer before notice of the investigation is given in order to avoid potential deletion of evidence.

Notice requirements can be difficult to navigate, and when employers fail to conduct a fair investigation, they may set themselves up for legal issues in the future. Working with a third-party investigator can help alleviate workplace investigation concerns. Speak to the legal team at Bridge Legal & HR Solutions.

What Rights does an Employee have During an Investigation?

During a workplace investigation, workers may choose to consult with a lawyer. Employees are not, however, entitled to have a lawyer or anyone present during investigation interviews unless the employer’s policy and/or the collective agreement (in the case of a unionized worker) allows for it. Unlike a police investigation, there is no general “right” to a lawyer. 

An employee may refuse to cooperate during the investigation or to answer questions during an interview. Refusing to participate in the investigation may be seen as insubordination, leading to disciplinary actions against the worker. Most companies in Canada have their own policies outlining investigation processes  and the expectation that employees will cooperate. All employees should therefore be aware of this expectation. 

Access to Information

Generally, employees have a right to privacy in the workplace (with certain limitations). For example, emails or text messages sent on company devices could be examined during an investigation in many cases. Employers must always review employee communications and conduct surveillance in good faith and in a reasonable manner. Any workplace policies should have clear and comprehensive guidelines regarding surveillance and the worker’s privacy rights. 

Expectations of an Employee During an Investigation

At the very least, employees can be expected to meet with the investigator (whether internal or external) to discuss the allegations against them. Ideally, the employee should be open to considering the allegations against them, listening to all the details and providing thoughtful responses. Many individuals are quick to defend themselves before knowing all the details of the allegations. 

During their investigation interview, the worker can share their side of the story and provide any relevant evidence (such as emails, witness names, or photos). The employee should be expected to remain cooperative and truthful throughout the process, and to avoid any actions towards the complainant or witnesses that could be considered retaliatory. 

Speak To a Workplace Investigation Lawyer Today

The rules surrounding employee rights during an investigation can be complex, and companies must ensure that investigations are fair and thorough in order to avoid potential litigation issues in the future. If you have questions about an employee investigation, contact Bridge Legal & HR Solutions at (647) 794-5442.

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