By Katie Stargardter
In Ontario, organizations face significant risks when conducting workplace investigations. Mistakes can go beyond internal employee relations issues, creating serious compliance risk under both the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code. Workplace investigations are therefore among the highest-risk activities an organization undertakes. Let’s examine common assumptions about best practices and highlight what is often missed.
What Is a Workplace Investigation in Ontario?
Tip: 5 Best Practices for Workplace Investigations
A workplace investigation is a structured, impartial process used to:
- Gather facts about a complaint or incident
- Assess credibility and evidence
- Determine whether workplace policies or laws were breached
- Recommend or implement corrective action
Here’s what the law requires:
- Duty to investigate: Employers must conduct an investigation “appropriate for the circumstances.”
- Timing: Investigations should be completed promptly (generally within ~90 days)
- Objectivity: The investigator must be impartial and not involved in the complaint
- Confidentiality: Information must be limited to what is necessary
- Written results: Both parties must receive a written summary of findings and actions
- No complaint needed: The duty to investigate exists even without a formal complaint
Workplace Investigation Requirements in Ontario (Quick Overview)
In Ontario, employers are legally required to investigate workplace harassment, violence, and related complaints under the Occupational Health and Safety Act (OHSA). Investigations must be timely, impartial, and appropriate to the circumstances. Employers must gather evidence, conduct interviews, and document findings. Failure to follow a proper investigation process can result in regulatory penalties, human rights claims, and increased legal risk.
Common Workplace Investigation Mistakes Employers Make
1. “No Complaint” Does NOT Mean No Investigation
Many employers wait for a formal complaint. The duty to investigate is triggered when the employer becomes aware of harassment, bullying, violence, discrimination, etc., formally or informally. This includes rumours, observations, or third-party reports. Ignoring it could mean non-compliance.
2. Internal Bias is a Bigger Risk Than You Think
Assigning a manager or biased investigator can backfire. Employers must ensure that workplace investigators are objective and impartial. A biased and/or untrained investigator can compromise the investigation’s required objectivity and potentially lead to legal issues.
3. Confidentiality is Not Optional, but it’s Often Misapplied
Employers frequently err by either over-disclosing or under-disclosing. The key is balance: share only the information strictly necessary for the investigation and subsequent action.
4. “We’ll Just Handle It Informally”
Conversations ≠ investigations. An investigation must include:
- Interviews with the complainant, respondent, and any relevant witnesses
- Evidence and credibility review
- Documentation
- Findings based on facts
5. Lack of Documentation
If it’s not documented, it didn’t happen (legally speaking). Maintain Interview notes, evidence logs, timeline of events, and final findings. Courts and tribunals care about your process, not just your outcome.
6. Failure to Communicate Results
Employers in Ontario must provide a written summary of the investigation results and disclose the corrective actions taken (in general terms). Sharing the full report is not necessary; only the outcome must be communicated.
7. Not Updating Policies After the Investigation
Workplace investigations serve as essential diagnostic tools. Following the identification of any deficiencies, or at least annually, employers are required to review their programs.
When Should You Use an External Investigator?
Use an external investigator when allegations involve senior leadership, there’s high legal or reputational risk, there are no trained investigators internally, internal bias could be perceived, or when the situation is complex and sensitive. If you’re unsure whether your investigation approach would stand up to scrutiny, this is where expert guidance matters. Learn more about Pivot HR’s workplace investigation support services.
Key Takeaways
- You must investigate all known incidents, even without a complaint
- Investigations must be prompt, impartial, and documented
- Confidentiality is required, but not absolute
- Written outcomes are legally required
- Poor investigations create more risk than no investigation
FAQ
Q: Do I always need an external investigator?
A: No, but you do need an impartial one. External is best for complex or high-risk cases.
Q: Can I skip an investigation if the employee doesn’t want one?
A: No. Once you’re aware of alleged workplace harassment, bullying, sexual harassment, discrimination, or violence, you must investigate.
Q: What standard of proof is used?
A: Workplace investigations use the “balance of probabilities” standard. This means “is it more likely than not that the allegation occurred”. It is not the criminal standard (“beyond a reasonable doubt”).
Need Support with a Workplace Investigation in Ontario?
Workplace investigations in Ontario carry significant legal and regulatory risk. Errors in process, documentation, or impartiality can lead to OHSA non-compliance, human rights claims, and reputational damage.
If your organization is dealing with a sensitive complaint or is unsure whether your investigation approach would meet legal requirements, it may be time to seek guidance. Contact Pivot HR Services to conduct independent workplace investigations, audit your current process, or train your team. We offer a complimentary initial consultation to help you assess your situation and determine the most appropriate next steps.