As an employee, you are entitled to a safe and healthy workplace. Harassment or an unsafe working environment is never acceptable. When an incident occurs, or a complaint is made, a workplace investigation is almost always required. This brief guide will provide an overview of what to expect when a workplace investigation takes place.
Step One: Complaint
If you notice there is a health and safety problem in your workplace, your first step is to report it to your employer. If you are experiencing or notice incidents of workplace harassment, you can also report that to your employer. Employers are required by the Ontario Health and Safety Act (“OHSA”) to investigate complaints of workplace harassment.
Remember, you have the right to refuse work that is unsafe without penalty. If you are unsure about your situation, speak to an employment lawyer.
Useful Tip: Always complain in writing and keep a copy of the complaint. Too often we see employers twist the substance of the complaint to be able to dismiss it. You might complain that a coworker is harassing you, but your employer decides it is “workplace friction” or a “failure of communication” to avoid taking any action or to shift the blame on you.
Step Two: Investigation
After a complaint has been made, an investigation should be completed. If an investigation is not completed, seek legal advice immediately. An investigation can be done by your employer, an external investigator or by an inspector.
Investigations by Your Employer
Your employer may investigate incidents or complaints of workplace harassment, discrimination, violence or other employee-related issues. For example, if an employee reports that they are being subjected to bullying by a supervisor. These investigations are often little more than window dressing and rarely produce results.
If your employer is conducting the investigation themselves, seek legal advice immediately. Having legal counsel to guide you through the process and protect your interests often produces a much better outcome as your employer cannot simply bully you during the investigation process.
Experiencing harassment in the workplace is both stressful and upsetting. It can be hard to know whether your employer will take your complaint seriously and investigate it properly. An employment lawyer will shoulder a lot of that stress for you, and allow you to consider your options. Many of our clients find that having a sympathetic professional ear to listen to their issues who can provide concrete steps helps their stress immensely.
Here are some common elements of a fair and proper workplace investigation to look out for:
- Your employer should be conducting the investigation as soon as possible, within 90 days.
- The person investigating your complaint should be impartial. For example, if the complaint is about your manager, that manager should not be involved in the investigation.
- Your employer should make reasonable efforts to interview everyone involved in the complaint. They should ask questions about what happened and take notes on the responses they get.
- The investigation and the details of the complaint should remain private as much as possible.
- The investigation should produce a written report that is independent of management oversight or review.
If you notice your employer is ignoring these key principles in their investigation, and you have not already sought out legal advice, you should consult an employment lawyer as soon as possible.
Investigations by an External Investigator
A qualified external investigator should be an external lawyer, specifically an employment lawyer. These investigations are far more likely to produce a result, though it may not be the result you want or need.
The investigator has been hired by your employer to investigate the complaint. This means they are not legal counsel for you or the harasser but are hired by the company to protect the company. If you want a lawyer to protect your interests, you need to retain one for yourself.
All the same elements for a fair and proper internal investigation are needed for one conducted by an external investigator. Many times, the investigation interview may feel like or become an interrogation. Having your own counsel present can often change the atmosphere of these meetings, leading to a better result.
Useful tip: You are allowed to bring your lawyer to any meeting or interview. Additionally, you are not required to answer any questions, provide documents, or allow the investigator or company access to any personal documents or devices. This may harm your complaint, however, so it is strongly advised you retain an employment lawyer to be present for any step.
Step Three: Following Up After the Investigation
After the investigations have been completed, you should a written report from the investigator. This report should include the people interviewed, the evidence gathered, and the factual and legal basis for the findings. Internal reports are often under 10 pages, while external reports can be over 100 pages.
If the investigation is done by an inspector, they will complete a report with their findings. This report will include any violations of the OHSA they found and any orders they have for your employer.
Having an employment lawyer review the report is often useful, even just for the peace of mind and knowing what your options are for the next steps. Workplace harassment or violence is an intentionally isolating experience. Your harasser or harassers are counting on you not doing anything. This is especially true if your employer is not properly addressing the problem due to company culture or out of a belief that the easiest solution is to allow the harasser to hurt you so much that you quit. It is not uncommon for our clients to be described by their employers as “not team players” or “problem employees” after they complain.
Useful Tip: Workplace harassment is not your fault, and is ALWAYS unacceptable.
The lawyers at De Bousquet PC can provide the support you need throughout this process, and ensure that you do not have to be subjected to workplace harassment or violence. Our lawyers believe no one should be forced to suffer this way, and work hard to ensure that employers are held accountable for condoning harassment and violence. If you, a friend, or a loved one are experiencing workplace harassment or violence, please contact us today. You do not need to suffer anymore.