Workplace investigations: a broad duty for employers

A workplace free of harassment and discrimination isn’t just something that can help a company’s recruitment and retention efforts - employers have a legal duty to foster and maintain such a workplace. And that duty includes investigating any instances of harassment and discrimination of which the employer may become aware – even if there isn’t an official complaint by any employees.

In all Canadian jurisdictions, occupational health and safety legislation addresses employers’ duties in protecting employees from workplace violence and harassment. In Ontario, for example, the Occupational Health and Safety Act (OHSA) requires employers to have policies in place that deal with these workplace dangers.

“[The OHSA] policies don't have to be super specific and they don't have to say everything that an employer must do to investigate, but the policies certainly have to make it clear that an employer will investigate any complaints of harassment or workplace violence,” says Carson Healey, an associate at Gowling WLG in Toronto. “It's also in an employer's best interest to [investigate] because the liability can be extreme if employers let harassers or potential harassers continue to run amok in the workplace - if they keep getting complaints, or even if they don't have complaints, depending on if the employer has knowledge of what's been going on.”

If an employee does file a complaint, then the employer’s duty includes not just investigating, but keeping the employee informed of the investigation and the results when it’s completed.

“It doesn't mean that the employer has to provide a complainant with a report - usually, an investigator will make a report to the employer and then the employer will write separate correspondence to the person who made the complaint, basically saying what was uncovered in the investigation, the result, and what corrective action, if any, was taken,” says Healey. “And that's very important with respect to accountability, because words are just words, but actions speak much louder, especially with respect to confidence in the process.”

No workplace harassment complaint

Where some employers may get tripped up is when they may become aware of harassing behaviour happening in the workplace, but no one makes an official complaint. Failure to take action in such circumstances can lead to the development of a poisoned work environment and consequences down the road, according to Healey.

“It’s not easy and it's not fun, but [investigating without a complaint] should be done to limit liability as much as possible,” she says. “Employers need to show their employees that they are alive to these concerns, and that’s a huge part of instilling confidence in the process.”

If there’s no complaint but the employer suspects some bad behaviour going on, it’s still a good idea to inform the suspected perpetrator that it’s looking into it, much as it would be obliged to inform someone of a complaint against them and give them a chance to respond, says Healey.

“You wouldn't find this in legislation anywhere per se, but for reasonable employers, it would be incumbent on them to approach the person in a sensitive way and say, ‘We've heard anonymously about these things happening,’” she says.

Encourage filing of complaints

In such circumstances, if the employer is aware of a particular employee that might be a target of harassment or discrimination, it can try to encourage that employee to file a complaint.

“Make it easy for them, and if they don't want to do it, at least document that the discussion took place, because it will end up being important if that person later files a complaint or a lawsuit,” says Healey. “The employer needs to provide that opportunity and make it easy and comfortable for people to come forward with those types of complaints, and if there's evidence showing that that was done, there really isn't much more you can do.”

“It's that idea of the employer at least documenting that they made an effort to uncover whatever it was that was going on,” she adds. “Where employers can get into trouble is where they appear willfully ignorant, or they appear like they received a complaint and they sat on it - situations where a court can infer that the employer didn't make an effort to investigate or was willfully ignorant to what was happening in its workplace.”

An employer’s duty to investigate doesn’t simply mean conducting an investigation – the investigation has to be reasonable, as well. What makes an investigation reasonable? Regardless of whether the employer uses an internal or external third-party investigator, they must be knowledgeable in occupational health and safety legislation and human rights legislation, as well as professionally trained to perform investigations, says Healey.

“There are increasingly more firms that provide external investigation services and some companies choose that because there’s that extra removal from the company,” she says. “That being said, if there are internal HR people who are well-versed and trained on conducting an investigation, that's definitely an option - where companies run into trouble is if they have someone internal do the investigation who isn’t trained on how to do an investigation properly.”

Proper investigation process

An investigator who isn’t trained properly might make errors that lead to employer liability - common pitfalls include failing to interview all the relevant witnesses and not providing an opportunity for the alleged perpetrator to respond, according to Healey.

“You want to make sure in that first interview with the complainant, you're establishing the allegations and who's involved - I've seen many situations where companies don't get in touch with people who obviously they should have interviewed,” she says. “Another common mistake is interviewing a respondent too early and then more allegations come out, and they don't interview the respondent again regarding the new allegations.”

Investigations can involve sensitive information and emotions for employees, so another challenge for employers is to balance transparency for the involved parties with confidentiality.

“When the investigation is taking place, the investigator will say when they're interviewing people, that what they’re saying is confidential and not to speak to their colleagues about it,” says Healey. “But we often tell employers not to guarantee absolute confidentiality, because there may be reasons that confidentiality needs to be lifted, like being ordered by a court in the wrongful dismissal lawsuit or a human rights complaint.”

The aftermath of an investigation

Due to the nature of workplace harassment and discrimination, there may still be work to do once the investigation has wrapped up and the employer has taken action – or no action, as the case may be - based on the findings. The matter may have been dealt with, but there can be ripple effects in the workplace, particularly if the misconduct poisoned the work environment. And employers have to keep their occupational health and safety obligations in mind, says Healey.

“Under the OHSA, there’s a duty to investigate, but there's also a duty to protect employees from harassment and workplace violence, and a duty to create a workplace free of those things,” she says. “So [the aftermath] may not have as much to do with the individual complainant as it does with protecting everyone else, because an employer has a duty to protect all their workers - it's easy for a workplace to turn toxic.”

In the wake of an investigation, shortcomings in the employer’s policies or procedures can be uncovered, creating an opportunity for things to be improved or fine-tuned, adds Healey.

“I would certainly recommend that an employer put together a communication about any changes that have been made, or whatever the progress is following an investigation,” she says. “You want to make absolutely sure that everyone in the organization knows exactly what to do if they want to make a complaint, so it can be an opportunity to remind people of the complaints processes and any changes.”

Employers and the HR departments can help maintain a safe and healthy workplace by living up to their legal duty to investigate workplace harassment and discrimination and not turning a blind eye when either a complaint is made or they become aware of an issue, according to Healey.

“Catching things early and making sure that employees know and feel comfortable filing a complaint will only come when the employer gets a reputation for taking action,” she says. “Everything's word-of-mouth in the workplace - word travels fast and people can tell the difference between an employer who takes harassment and discrimination complaints seriously and who doesn't.”