It used to be that formal investigations into workplace misconduct were only conducted by a handful of large employers. In the past few years, though, all of that has changed with the widespread implementation of occupational health & safety laws that now require most companies and organizations to investigate employee harassment and violence concerns. If that kind of misconduct arises in your workplace, chances are high that you have a legal duty to conduct an investigation, and it has to be done properly. Let’s review why, when and how you have to investigate workplace harassment and violence issues.
Why you have to investigate
In most Canadian provinces and a growing number of U.S. states, governments have passed OHS laws that require employers to take action against workplace harassment and violence. There are good reasons for this: Statistics Canada has reported that 60% of Canadian workers have been subjected to harassment, and research in the United States supports a similar conclusion in that country. Quite often, harassment negatively impacts both the victim of the behaviour and the workplace generally, and as a way of trying to reduce this misconduct, new laws require many employers to establish anti-harassment policies that set out a process for identifying and dealing with it.
Unlike laws that empower government agencies to deal with misconduct, these anti-harassment laws usually put the onus on employers to receive and investigate complaints and to take appropriate steps to resolve them. It’s a model that has been called “self-regulated regulation”, which means that the government has identified the problem (workplace harassment and violence) and has imposed obligations on employers to address that problem but has left the actual mechanics to you.
When you have to investigate
First of all, check the OHS laws that apply to your business. It’s likely the case that you now have a duty to adopt an anti-harassment and anti-violence policy and to educate your staff about it. The policy should lay out a process by which employees can make harassment or violence complaints and, then, how those complaints will be investigated. Some OHS laws are more specific than others regarding the investigation requirement, but the obligation is generally similar: when information about possible workplace harassment or violence arises, you have to investigate it.
A trap that some employers fall into is the mistaken idea that only a formal complaint that an employee makes in writing has to be dealt with. The law indicates otherwise, and the reality is that even a verbal report of harassment or violence triggers your duty to investigate.
How to investigate possible harassment or violence
Conducting an unfair investigation will only put your company or organization at greater risk of litigation and potential legal liability. A fair investigation is one that has to be conducted in a competent, timely and unbiased manner and, while not every investigation has to be done by a professional, external investigator, some issues do require that degree of expertise. The first questions that should be asked, then, are for the purpose of determining whether an internal or external investigator should be appointed: a) is there a qualified and skilled internal investigator available? b) does that internal investigator have sufficient time available to complete the investigation in a reasonable time? c) do any of the key participants in the complaint have close personal or professional relationships with the internal investigator that might give rise to concerns about bias?
Regardless of whether an internal or external investigator is appointed, some of the important steps to be followed include:
1. Review applicable legislation and policies.
2. Review the complaint and any supporting information.
3. Ensure that the Respondent(s) has been apprised of the allegations.
4. Create an initial witness list (subject to amendment later).
5. Prepare interview questions. Avoid asking for opinions (ex., “Do you think that Person X harassed Person Y?”).
6. Determine if specialized resources are needed (ex., a computer technician to access emails; a security person to access surveillance video recordings or to unlock secure areas).
7. Map out a schedule for conducting interviews and make appointments.
8. Decide how to record your interviews (ex., handwritten notes, audio recording, video recording).
What’s important, essentially, is that workplace harassment and violence complaints are competently investigated. While some legislation overtly requires that a “competent person” conduct any investigation, all OHS legislation implies it. Furthermore, the legal consequences for employers that have appointed inexperienced and untrained investigators have been severe.
The consequences of a bad investigation
Appointing an unqualified investigator might seem like a cost-saving measure initially. The benefit may be short-lived, however, since courts have been unsympathetic to employers that have tasked either biased or inexperienced investigators with the assessment of harassment or violence complaints. Just a few examples are:
1. Doyle v. Zochem Inc., 2017 ONCA 130 (CanLII); 2017 ONSC 920 (CanLII)
“[The manager’s] experience was limited to accounting. … She mangled the termination process. She ventured into a minefield of legal and emotional issues, the complexity of which she could hardly have imagined. Her Human Rights Code “investigation”, (her first), into the sexual harassment complaints, was biased, prejudged, hurried, and incomplete.”
In addition to other damages, the plaintiff was awarded costs of $424,583.00.
2. Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII)
“In reaching their findings, Wal-Mart’s management team appeared to ignore the numerous incidents in which Pinnock berated Boucher in front of co-workers. And little evidence was led at trial that Wal-Mart’s investigators sought information from the other assistant managers who had witnessed Pinnock’s abusive conduct. ”
In addition to other damages, the Plaintiff was awarded $300,000 in aggravated and punitive damages against Wal-Mart.
3. Hamilton (City) v Amalgamated Transit Union, Local 107, 2013 CanLII 62266 (ON LA)
“[The] investigation…fell far short of what was reasonably required.”
· failed to interview some witnesses to alleged incidents
· failed to interview a woman who might have provided evidence of a poisoned work environment
· limited her investigation of the Respondent’s emails to just those correspondences between [the Respondent] and [the Complainant], whereas a fuller audit might have provided evidence of broader issues with [the Respondent’s] conduct towards female employees.
What you need to know
As an employer, it’s important to know that the new OHS legislation that addresses workplace harassment and violence doesn’t have to be a problem for you. In fact, the behavioural requirements that the law is asking you to enforce can be beneficial to your business in a number of important ways. That said, when a harassment or violence complaint is made, it’s crucial that you:
a. Act quickly;
b. Refer to your policy for guidance; and
c. Appoint a qualified and unbiased investigator.
On this last point, there are lots of people who describe themselves as an “investigator”, and it will be important later that you find someone who’s competent. Your choice of an investigator can make a huge difference.
If you’d like more information on Infopowered Solutions Inc., including its capacity to assist you with timely, competent investigations conducted by a certified and experienced investigator, please contact us: email@example.com
 See Agovino, Theresa. “Toxic Workplaces are Costing Employers Billions”, SHRM,
September 26, 2019 https://www.shrm.org/ResourcesAndTools/hr-topics/employee-relations/Pages/Toxic-Workplace-Cultures-Are-Costing-Employers-Billions.aspx, Retrieved September 27, 2019
 Hango, Darcy and Moyser, Melissa. (2018). Harassment in Canadian Workplaces. Statistics Canada. https://www150.statcan.gc.ca/n1/pub/75-006-x/2018001/article/54982-eng.htm, Retrieved September 7, 2019; Statistics Canada. https://www.canada.ca/en/employment-social-development/services/health-safety/reports/workplace-harassment-sexual-violence.html#h2.2-h3.2
 Fisher-Blando, Judith. (2008). Workplace bullying: Aggressive behavior and its effect on job satisfaction and productivity. PhD thesis, University of Phoenix. http://www.workplaceviolence911.com/docs/20081215.pdf, Retrieved September 7, 2019; U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace. Report of Co-Chairs Chai R. Feldblum and Victoria A. Lipnic (2016). https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf, Retrieved September 7, 2019
 Doorey, David J. (2012).A Model of Responsive Workplace Law. Osgoode Hall Law Journal 50(1). 47-91. http://digitalcommons.osgoode.yorku.ca/ohlj/vol50/iss1/2 , Retrieved September 8, 2019.
 Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII)