When to investigate

A common question we receive from employers centres around the duty to investigate. Not unlike the duty to inquire, the employer’s duty to investigate a workplace complaint is spelled out in many provinces by their respective health and safety legislation and through human rights tribunals. These authorities have established that an employer has an obligation to investigate all conduct and behaviour that is suggestive of workplace bullying, harassment and/or in some jurisdictions, violence.

For example, in British Columbia, WorkSafeBC requires all employers to investigate complaints of workplace harassment to maintain a safe workplace.

In Ontario, the Ontario Occupational Health and Safety Act(“OHSA”) has a broad definition of workplace harassment which covers human-rights related harassment, and non-human-rights-related harassment, both of which must be investigated.

In Quebec, legislation states that employers are required to prevent psychological harassment in the workplace and if they become aware of such conduct, put a stop to it. Although it’s not explicitly stated, an investigation is often required.

On the federal level, Bill C-65 became law on January 1, 2021 and requires federally regulated employers to investigate, record, and report all occurrences of harassment and violence at the workplace. Prior to this bill, only incidents of violence were required to be investigated.

What does that mean for the typical employer?

For most employers, there is a simple question that is needed to be asked when trying to ascertain if an investigation is needed. That question is: If this complaint is true, would the acts it alleges constitute a breach of our policies and/or can it create a legal liability?

If the answer is yes, an investigation is likely warranted. In the case of a bullying and/or harassment complaint, the answer is always yes, and some form of an investigation must be conducted. But if the answer is no, it does not necessarily mean that nothing should be done. For example, if an employee breeches another policy where they consistently take a 2-hour break while policy provides only one hour, they are in breach of policy, and while there is no legal liability to the organization, doing nothing would imply an implicit approval of this behaviour.

The complainant has moved on, can I stop the investigation now?

A fairly common thing happens after a complaint is made – the person who makes the complaint chooses to leave the organization. Mistakenly, many employers believe that if that happens, they are ‘off the hook’. This is a false and often risky assumption. The duty to investigate does not rest with a specific individual, but with the policy and applicable legislation.

What that means is that the duty to investigate is still present whether the complainant is present and cooperative, or if the complainant chooses to move on and is perhaps even unwilling to participate in the investigation.

While not every workplace experiences complaints that rise to the level that requires an investigation, many do. If you were to receive a complaint tomorrow, would you know what to do? The first place to start is to ensure that your bullying, harassment, and complaint resolution policies meet or exceed applicable legislation, and that they include language about how an investigation might proceed.

As always, if you need help with crafting or reviewing your policies, we are here to help.