Employers Have Flexibility with Workplace Investigations in Canada

​Workplace investigations in Canada can be complex to navigate, with few rules governing the process. While some legislation addresses investigations, there is wide leeway to implement them.

"In Ontario, we have the Occupational Health and Safety Act, which creates a duty to investigate where there are incidents of workplace harassment or violence. That creates an obligation for employers to prepare and implement some policy on how employee complaints are to be investigated," said Geoffrey Wong, a workplace investigator at Rubin Thomlinson in Toronto. 

For federal entities, the Canada Labor Code applies. "The Canada Labor Code was recently amended by Bill C65, and it was revamped in everything that is related to workplace investigations and how employers in the federal sector are supposed to handle concerns of harassment and workplace violence," said Catalina Rodriguez, Employment Lawyer at Forte Law in Surrey, British Columbia, Canada.

Still, the format of the investigation is mostly left up to interpretation. "There's no prescribed procedure," said Howard Levitt, an attorney with Levitt Sheikh in Toronto. The courts have said "give the person a chance to know the case against them and give them a chance to explain. And that's it." 

Workplace investigations become necessary for a variety of reasons, so it's important for companies to have policies in place. If a company has been sued, an employee makes inappropriate or racist remarks, or a company is planning to terminate an employee for cause, workplace investigations are needed to explain the company's decision-making.

It's the only way in which an employer can defend itself or show due diligence in various instances, Rodriguez said. If an employer is going to terminate someone without severance, it has to be able to show that it had what at law amounts to just cause, she added.

To get the facts, employers should ask these questions, according to Levitt:

• What are the employee's imperfections?
• How did the reasons for termination occur?
• What else was going on?
• Who else was involved?

Who Should Conduct an Investigation

Choosing who conducts the investigation is one of the most important decisions that a company will make during a workplace investigation.

"Sometimes the situation calls for an external investigator in cases where there's a conflict of interest, because the internal investigator is their boss, is their CEO, is someone very high up that needs to be investigated, so it's not appropriate for [HR or internal leaders] to do so," Wong said.

That said, "outside investigators are often just seen as hired guns who will give you what you want, give you what you pay for and they don't have a lot of credibility," according to Levitt. 

In most cases, he said, the investigation should be done by somebody trained in HR who's good at investigations. An HR professional already knows the company culture and the staff and has a sense of what policies are and are not being breached, he noted. 

If external investigators are required, retired judges present an alternative to lawyers. "They don't charge any more than lawyers, and their opinions are far more respected by everybody, including the court," Levitt said. "There are retired judges that are doing mediation. Use them for investigations."

What Employees Should Know

In unionized workplaces, employees are entitled to union representation. All employees should be made aware of the concerns brought against them. "Even before there's an issue, before there's a complaint, I think employers need to lay the groundwork by just making the process transparent, explaining, 'Here's a policy that we have,' " Wong said.

Employees "should also be aware of the fact that workplace investigations are never done in a week. … They need to be aware that they need to be patient and that they need to trust the process," Rodriguez said. At the same time, employees are not going to have control over the process, "and that is anxiety-inducing."

Four Pillars of Investigations

"We focus on four pillars: fairness, thoroughness, timeliness and confidentiality," Wong said. "Everything that we do through every step of the process, we have to keep those four things in mind."

That said, an internal investigator should not promise complete confidentiality since some facts might have to be disclosed internally on a need-to-know basis or to advance the investigation, or the issue may subsequently go to court.

Suspending an employee is not a neutral act, but sometimes it's necessary because witnesses often won't speak if the accused is still in the workplace, Levitt said. 

Navigating workplace investigations might be tricky, but doing them correctly can help resolve workplace issues. 

Katie Nadworny is a freelance writer in Istanbul.