The short and often heard answer from a lawyer is: “It depends”. And in this case, it is an accurate answer. The situation and specific circumstances an employer is dealing with will determine whether or not a formal workplace investigation must be undertaken.
When a workplace investigation is not necessary
A minor challenge, attitudinal issue or disagreement between staff will often not lead to a workplace investigation. Also, if there is no uncertainty as to whether or not something happened which resulted in a complaint, an investigation will most likely not be required, as the facts at issue are not in dispute.
It is important to keep in mind that the objective of any investigation is to obtain factual information so as to determine if a response or specific action is required. So if no information is missing or nothing is in doubt, chances are an investigation is not necessary. An employer may still need to take action in response to an incident, but the circumstances surrounding the incident may not be in doubt, and therefore no investigation is required.
When a workplace investigation IS necessary
There are a number of different circumstances where a workplace investigation will be required. If an employer receives a complaint of a significant and serious nature, and there is uncertainty as to whether or not something happened, an investigation should be utilized to determine the facts surrounding the incident.
It is important for employers to be aware that the law requires a workplace investigation into claims of violence, potential threats to safety, harassment, discrimination, and retaliation.
Complaints made by employees about bullying, sexual harassment, human rights violations, and a poisoned/toxic work environment may also give rise to an investigation.
As well, there may also be specific employer policies that mandate a workplace investigation in certain circumstances.
There are a number of other things that may cause an employer to start an investigation. A complaint made by an employee, client or member of the public may trigger an investigation. A perceived threat of litigation may be a cause to start one. An employer’s legal obligation of good faith when terminating an employee may give rise to a workplace investigation. As well, high staff turnover or high levels of employee dissatisfaction may also be cause to initiate a workplace investigation.
Are there any consequences if an employer does not initiate a workplace investigation?
Yes, there may be significant consequences to an employer if they fail to complete a workplace investigation where the circumstances require it. In one case, the Court awarded $800,000 in damages for mental distress and lost income, where the employer failed to investigate an allegation of sexual harassment.
In Ontario, the Human Rights Tribunal confirmed that the well-established law is:”Failure to investigate discrimination complaints can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination.” The Tribunal has found that it is a failure to adequately investigate complaints of harassment that are incompatible with respect for dignity.
Learn to know when a workplace investigation is required
There are certain circumstances that give rise to the need to investigate under the law and/or employer policies. As well, employers who want to ensure a work environment that is both productive and collaborative, and want their employees to feel safe and valued, should be very clear on when to initiate a workplace investigation.
Want to discuss a workplace investigation issue? Schnapp Dispute Resolution is here to collaborate with you.
My experience in workplace investigations, workplace mediation, complaint handling and work as an ombudsman empowers me to help HR professionals, employment lawyers and executives, and individuals navigate sensitive issues with confidence.
For a consultation, please contact:
Marshall Schnapp, BA, JD, LLM (ADR)
Schnapp Dispute Resolution
Email – marshall@schnappdr.com
Telephone – 416.789.2983
