What is a Workplace Investigation?

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What is the purpose of a workplace investigation? How is a workplace investigation instituted? What is the role of Ontario Occupational Health and Safety Act respecting a workplace investigation? What are the goals of a workplace investigation and what are some of the common steps in a workplace investigation?

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk briefly about workplace investigations. What is a workplace investigation; what is its purpose; what are some of the goals; how is a workplace investigation instituted; and what are some of the steps taken in a workplace investigation; so you can get a basic understanding of workplace investigation whether you are an employer or an employee who is involved in an investigation.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Workplace investigation is to investigate a workplace dispute.  That’s one of the common reasons.  There could be an allegation of improper conduct.  For example, harassment complaint by an employee against a coworker or a manager or supervisor or a discrimination complaint or a complaint of any other conduct that is considered to be improper—you may, as an employer, need to investigate that.  There may be a workplace accident or an injury that requires an investigation and that could be a reason.  Or something or another occurrence/something else that may have happened in the workplace that warrants that the employer should investigate that particular occurrence. 

What is the purpose of an investigation? The fundamental purpose of workplace investigation is fact finding—to figure out exactly what happened—that is the most basic and the most essential purpose of a workplace investigation.  Who said what to whom; what was the incident; how did it happen; who were the parties involved; essentially all the important elements of that specific instance or instances and to figure out all the facts that are relevant to that particular issue.  Fact finding is one of the most essential and sometimes the only purpose of an investigation. The investigation could be much broader than just a fact finding mission but essentially it has to be a fact finding mission.  

Other purposes could be to identify breaches of policies and procedures.  If the employer has any policies relating to that instance, then the employer may want to know whether a specific policy or policies or procedures were breached.  For example, if it’s a workplace incident involving the use of specific machinery—were there any policies relating to the operation of that machinery and whether the policies were followed or, if not, whether the procedures were breached.  If so, who did that?  Some of the purposes of the workplace investigation could be to figure that out.  Also one of the purposes of investigation could be to figure out any breaches of law.  This could be different from the policies and procedures because policies and procedures may be limited to that specific employer and may not necessarily be a legal obligation imposed by law. 

Another purpose of workplace investigation could be to figure out breaches of law—whether there was discrimination contrary to the Human Rights Code; was there any harassment contrary to the Occupational Health and Safety Act—whether there were any other breaches of law; whether the alleged act was a criminal act and warrants any criminal investigation.  All of these things may be part of the investigation process.  Another purpose of investigation could be to obtain recommendations from the investigator so that any future issues of similar nature could be avoided.  The employer may ask the investigator to provide a legal opinion on the matter/s; the employer can ask the investigator to provide any recommendations—whether any legal action is warranted against any of the parties who are involved in that issue. 

What is the obligation to investigate?  The investigation could be done in one of the two ways: 1. Investigation is done under Occupational Health and Safety Act in Ontario.  There are similar legislations in other provinces.  I’m not sure whether other provinces mandate a workplace investigation but in Ontario under Occupational Health and Safety Act, the Act requires (it imposes a mandatory obligation on) the employer to conduct a workplace investigation when there are issues related to harassment.  Here’s the Occupational Health and Safety Act.

Section 32.07(1) “To protect a worker from workplace harassment an employer shall ensure that,

 an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

It is important to recognize that the language that is used is to conduct an investigation. Number one, it’s a mandatory obligation to conduct investigations. And number two, investigation has to be conducted into incidents and complaints.  Sometimes there could be a potential workplace harassment but there is no complaint actually filed with the employer.  The employer becomes aware of an incident which may be considered a workplace harassment—the obligation to investigate is still on the employer to conduct a workplace investigation.  Obviously, when there is a complaint, then the employer has an obligation to conduct a workplace investigation. The other section that is worth reading here with respect to the investigation is that,

  • The worker who has allegedly experienced workplace harassment and the alleged harassers, (both parties) if he or she is a worker of the employer are informed in writing of the results of the investigation and if any corrective action that has been taken or that will be taken as a result of the investigation.

The person who made the complaint or the person who has experienced workplace harassment is entitled to know what is the conclusion of the investigation and secondly the person who has been accused is also entitled to know what is the outcome of the investigation and this needs to be done in writing.  The Occupational Health and Safety Act mandates the employer to conduct an investigation with respect to workplace harassment issues.

Otherwise the employer has its own discretion to conduct an investigation.  If it’s not a harassment scenario, in any other circumstance, the employer may decide that a workplace investigation is appropriate in the circumstances and may choose to conduct an investigation. 

An example of such an investigation could be an investigation into any discrimination or potential discrimination issue/s.  The Ontario Human Rights Code does not mandate an investigation.  The employer may choose to conduct an investigation to figure out whether there was any discrimination based on the facts of the case at hand and to take appropriate action. 

Aside from the Occupational Health and Safety Act there is no obligation but based on the specific circumstances of the issue the employer may choose to investigate.  Just so you know workplace investigations have now become a common thing—primarily because employers want to make sure that they understand what has happened and to protect other employees and the employer itself from any legal actions that may flow from that specific instance.

What are some of the goals of workplace investigation? It is tied to the purpose of the investigation. One of the goals of the investigation is to figure out what legal action, if any, needs to be taken based upon the issues that have come to light in that specific investigation, and, if there are any remedies that need to be obtained with respect to that investigation.

Another goal is to make sure that the workplace is repaired if there is a breach in relationship between coworkers and employees, then that is repaired.  You create a work environment which is safer and cordial. And make sure that if there are issues with any policies—either with respect to the policy itself or with respect to any training or any other facts relating to workplace policies—then that that is looked after. Obviously, the employer wants to make sure that the workplace is more productive and safe for all of its workers.  Finally, the employer also wants to make sure that similar issues do not arise in the future.

Now how is a workplace investigation instituted? First of all as I said, the employer may become aware of the issues; knowledge of issue; dispute or the occurrence. Then the employer because of that knowledge starts the process of deciding whether to conduct an investigation or not.  Or the employer may have seen specific complaints from an employee with respect to an issue and that may trigger the inquiry of whether a workplace investigation needs to be conducted. 

Once that knowledge of the issue is made aware, then the employer conducts a preliminary review—usually done by human resources department, if the employer is big enough to have a dedicated human resources department or someone who is in charge of human resource issues will conduct a preliminary review and decide whether an investigation is warranted in the 1st place or not. If it’s an Occupational Health and Safety Act issue (obviously for harassment issues) the investigation is mandatory.  For other matters, the preliminary review will determine whether to conduct an investigation or not. 

Once the decision is made to conduct an investigation the next step is who will conduct the investigation. Whether it’s going to be an internal person / an internal employee of the organization who will conduct the investigation or whether it’s going to be someone outside of the organization / an external person who will conduct the investigation. 

If it’s an internal person, then the employer has to decide who is the appropriate employee to conduct investigation; whether this person could be a human resource person; whether this could be a manager ; a supervisor or another competent employee who has no conflict of interest.  There are other factors that an employer needs to consider to make sure that an appropriate employee is assigned for the task to investigate.  We will provide separate lectures on selecting an appropriate investigator and how do you figure out who is the right person to investigate based upon the specific circumstances of an investigation. 

If the employer decides that it is going to be done by an external investigation, one of the factors that the employer may consider is whether the investigation needs to do be conducted by a lawyer or a non-lawyer—whether it could be someone who can simply conduct a fact finding mission without having a clear or deeper understanding of the legal issues involved then a non-lawyer may be suitable. Again with respect to the selection of an appropriate investigator we will provide a separate lecture and will cover this topic in more detail.

Now how is an investigation conducted?  Some of the common steps in a workplace investigation are as follows:

First of all an investigator is assigned whether internal or external investigator; 2nd then the investigator is provided with the mandate. What is the scope of the investigation? Is it only fact finding or investigator has to dig deeper into related matters?  For example, breaches of policies and breaches of law—whether the investigator is required to provide an opinion on policies and procedures, on law or any other recommendations that the employer may be seeking from the investigator.  3rd The employer may also prescribe a timeline for the conduct of the investigation.  Usually the expectation is that the investigations are commenced and completed in a reasonable time period.  Once that is done, then the role of investigator begins.  Investigator starts gathering facts and evidence. In that process the investigator gathers all documentary evidence that may be relevant to the understanding of the issues that have occurred.  The investigator may get viva voce evidence and the investigator will most likely conduct interviews from a number of witnesses to figure out what has truly transpired in that specific instance.  Once all of that is complete, the investigator will review all of the evidence and all of the facts and then provide a report to the employer regarding the outcome of the investigation.

What is it that you want to keep in mind with respect to workplace investigation? That a properly conducted workplace investigation is usually very helpful to the employer in understanding what has happened, what caused the issues that became the reason for the investigation, how to maintain a safe and productive workplace environment and to make sure that future instances of similar nature (similar disruptions) do not occur at the workplace.

In our future lectures we will talk more about workplace investigation and some of the specific topics, for example, choosing an appropriate investigator; how to conduct a fair and unbiased investigation.  We will cover those topics in our future lectures.  Thank-you for watching this and hopefully this gives you a basic understanding of what is a workplace investigation. Thank you.

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