When an employee makes allegations against another in the workplace, it is the duty of the employer to conduct an investigation into the matter. Determining if the allegations are substantiated and if disciplinary actions are warranted can only be done after a thorough investigation takes place
An employer can choose to do an internal investigation or have an independent investigator take over. Often, using a third party is the preferred choice for many reasons.
First, it is less likely that the investigation and eventual findings will be thought to be tainted by bias.
Second, a professional investigator with training and experience in workplace investigations will know how to collect evidence and conduct a comprehensive analysis.
A fair investigation will also take into account the rights of both the Complainant (the person making the complaint) and the Respondent (the person alleged to have engaged in the behaviour). If you have questions about what is the proper procedure for a workplace investigation, consider contacting the Ontario HR and employment lawyers at Bridge Legal & HR Solutions today at 647-794-5442.
What Rights Do Employees Have in a Workplace Investigation?
An employee that is being investigated must be given an overview of the allegations against them, and a chance to respond. The investigation must also happen in a timely manner. Should disciplinary action be necessary, it must also take place swiftly. Unexplained delays can result in a legal complaint against the employer.
When an investigation must take place, it is highly recommended that employers work with a third party that has the relevant experience. When a company decides to work with an employment lawyer that has a background in investigations and has an understanding of the process, this can potentially reduce liability for the business. The Ontario workplace investigation lawyers at Bridge Legal & HR Solutions have decades of combined experience and are dedicated to providing clients with high-quality, practical legal services.
Fairness in the Workplace
Both the Complainant and the Respondent are entitled to a fair investigation process. The way fairness is defined in a workplace investigation (a civil process) is much different from fairness during a criminal process. For example, in a workplace investigation the Complainant can remain anonymous, provided that there is enough information provided to the Respondent to allow them to respond to the allegations.
How Can Employers Protect Themselves from Complaints Resulting from a Termination?
Employees have protections against wrongful dismissal that can be found on Ontario’s Ministry of Labour, Training, and Skills Development’s website. It is incumbent on an employer to conduct a fair and thorough investigation when allegations arise in the workplace, in order to avoid complaints of wrongful dismissal down the road should an employee be terminated as a result of investigation findings.
Workplace Investigation Interviews
During the course of the workplace investigation, there will be interviews with the Complainant, the Respondent and relevant witnesses. Depending on the specific provisions of a workplace’s harassment policy, parties and witnesses may be permitted to bring a legal representative, a union representative, or a support person to the interview.
Do Workers Have to Comply with Workplace Investigations?
In Ontario, workplaces are required to have a workplace harassment policy, which outlines how a workplace investigation will take place. Generally, it is expected that workers will cooperate with the investigator during an investigation and answer questions truthfully when they are interviewed.
It is crucial that witnesses do not feel intimidated when participating in a workplace investigation, and that they are not compelled to only explain a specific narrative. Witnesses should be advised that there can be no retaliation or reprisal for their participation in a workplace investigation.
Many witnesses request a guarantee of anonymity in exchange for their participation; they should be advised that any information that they provide upon which the investigator intends to rely must be put to the parties for response. While in some cases it may be possible to not provide the names of witnesses to the parties, it is likely that they will be able to guess which witnesses were interviewed as a result of the questions asked by the investigator. In addition, there is a chance that all relevant documents – including the investigators notes – could be disclosed in the event of future legal proceedings.
Speak with an Experienced Legal Team Today
Employees may decide that there were violations of their rights during a workplace investigation. Employees that believe they were wronged may contact legal counsel to help them with their case, or they may file a claim if it can be established that the employer breached an applicable section of Ontario’s Employment Standard’s Act.
Due to the sensitivity of workplace investigations and their potential devastating outcomes to employees, it is necessary that they be done securely and correctly. In order to protect your company’s legal interests and to promote a safe working environment at your business, consider contacting the Ontario workplace investigators at Bridge Legal & HR Solutions today at 647-794-5442.
