By: Alex Coolich, People & Culture Consultant
Ontario employers do not necessarily need a written complaint before their duty to investigate workplace harassment arises. Under Ontario’s Occupational Health and Safety Act (OHSA), employers must ensure that an investigation appropriate in the circumstances is conducted into both incidents and complaints of workplace harassment. For employers dealing with workplace harassment in Ontario, a duty to act can arise even when no formal complaint has been filed.
That distinction is important. An employee may describe troubling conduct but say they do not want to “make a complaint.” A manager may witness an incident directly. HR may learn about alleged harassment through an exit interview, anonymous report, email, or third party. In these situations, the absence of a formal complaint does not necessarily remove the employer’s obligation to act.
When Does an Employer’s Duty to Investigate Workplace Harassment Arise?
An investigation may be required when a worker makes a formal or informal complaint, or when the employer becomes aware of a potential workplace harassment incident in another way.
For a broader overview of why and when investigations may be required, see Pivot HR’s What is the Purpose of a Workplace Investigation?
Potential triggers include:
- An employee verbally reports conduct that could constitute harassment but does not submit a written complaint.
- A supervisor witnesses repeated humiliating comments, workplace bullying, sexual remarks, or other potentially harassing behaviour.
- A witness raises concerns about conduct directed at another employee.
- HR learns about possible harassment during an exit interview or another workplace process.
- An anonymous report provides information about a potential harassment incident.
- Several concerns, considered together, suggest a possible pattern of harassment.
The key question is therefore not simply, “Has someone filed a complaint?” It is, “Has the employer become aware of information that may amount to an incident of workplace harassment?”
What If the Employee Does Not Want an Investigation?
This can create a difficult situation. An employee may disclose an experience because they want support but ask HR or their manager to keep it confidential and take no further action.
Employers should listen carefully but avoid promising absolute confidentiality. Under the OHSA, information obtained about an incident or complaint must generally remain confidential unless disclosure is necessary to investigate, take corrective action, or is otherwise required by law.
An employee’s wishes should be considered, but they do not automatically determine whether an investigation occurs. Once an employer becomes aware of a potential harassment incident, it should consider its statutory obligations, the seriousness of the alleged conduct, whether others may be affected, and what investigation is appropriate in the circumstances.
Not Every Investigation Needs to Look the Same
An “investigation appropriate in the circumstances” does not mean every concern requires an identical process. Ontario’s Code of Practice recognizes that some matters may require a relatively limited investigation, while complex allegations may require a more extensive process.
Employers should consider:
- the nature and seriousness of the alleged conduct;
- whether the conduct may be ongoing or repeated;
- the number of incidents and potential witnesses;
- the positions of the people involved;
- potential conflicts of interest; and
- whether specialized investigative expertise is required.
Some investigations also involve overlapping legal and workplace issues. For example, harassment allegations may arise alongside workplace violence, human rights, or accommodation concerns. Pivot HR explores how employers can manage these intersecting obligations in Workplace Investigations in Canada: When Harassment, Violence, and Accommodation Concerns Overlap.
For allegations involving senior leaders, repeated conduct, sexual harassment, significant credibility disputes, or internal conflicts of interest, using an external workplace investigator may strengthen independence and procedural fairness.
What Should Employers Do When They Learn About a Potential Incident?
A consistent intake and assessment process can help employers respond appropriately without reaching conclusions before the facts are established.
1. Document what was reported or observed.
Record the relevant facts, including what allegedly happened, when and where it occurred, and any identified witnesses or documents. Pivot HR’s article, Workplace Investigations in Ontario: What Employers Need to Document, explains the records that can support a well-documented investigation process.
2. Assess the substance of the information.
Do not require an employee to use words such as “harassment” or “formal complaint.” Consider whether the conduct described could engage the organization’s harassment policy or OHSA obligations.
3. Determine the appropriate scope and investigator.
The investigator should be objective, knowledgeable about workplace investigations in Ontario, and neither directly involved in the incident nor under the direct control of the alleged harasser.
4. Consider interim measures.
Temporary reporting changes, scheduling adjustments, no-contact directions, or other measures may sometimes be appropriate while facts are gathered. These measures should not presume that the allegations have been proven.
5. Investigate promptly and fairly.
Ontario guidance recommends completing an investigation as soon as possible and, ideally, within 90 days unless compelling circumstances justify a longer process.
6. Communicate the outcome.
Under the OHSA, the worker who allegedly experienced harassment and the alleged harasser, if they are an employee, must be informed in writing of the investigation results and any corrective action taken or that will be taken as a result.
Why Waiting for a Formal Complaint Creates Risk
A “no complaint, no investigation” approach can create compliance and workplace risks. If management already knows about conduct that may constitute workplace harassment, waiting for an employee to complete a form or expressly request an investigation may be inconsistent with the employer’s OHSA obligations.
Delay can also create practical problems: evidence can disappear, memories can fade, conduct may continue, and employees may lose confidence in the reporting process.
Managers should therefore understand that learning about possible harassment is not simply an interpersonal issue to manage informally. It may trigger an organizational obligation that needs to be escalated and assessed promptly.
FAQ
1. Does a workplace harassment complaint in Ontario have to be in writing?
No. A workplace harassment complaint may be made verbally or in writing. Employers may also need to investigate when they become aware of a potential incident even if no formal complaint has been filed.
2. Can an employer investigate an anonymous report?
Yes, depending on the circumstances. An anonymous report can still make an employer aware of a possible incident. Limited information may affect the scope or feasibility of the investigation, but anonymity itself does not mean the concern should be ignored.
3. When should an employer use an external investigator?
Consider external support when independence could reasonably be questioned, senior leaders are involved, allegations are serious or complex, or the organization does not have appropriate internal investigative expertise.
4. Does every workplace conflict require a harassment investigation?
No. Ordinary workplace disagreements and reasonable management action do not automatically constitute workplace harassment. Employers should still assess the information they receive rather than dismissing it solely because no formal complaint was made.
Need Help Deciding Whether to Investigate?
When information about possible harassment surfaces, the first challenge is often determining whether an investigation is required and what process is appropriate. Trusted by 120+ leading organizations, Pivot HR helps employers navigate complex workplace issues with practical, impartial support. We can help Ontario employers assess the situation, establish an appropriate scope, and conduct a fair workplace investigation. For organizations in the GTA, learn more about our HR consulting services in Toronto.
Contact us today to discuss your goals and next steps.