Managing and Conducting Workplace Investigations During the COVID-19 Pandemic

Workplace investigations can help ensure employers are not only compliant with the law, but also help identify workplace issues, take corrective measures and take steps to prevent them from reoccurring.  However, with the COVID-19 pandemic and court closure till June, should workplace investigations continue?

What is a workplace investigation?

As the name suggests, a workplace investigation is a process where the employer looks into a workplace issue or complaint. The investigation is typically conducted by either an internal person trained in human resources and workplace investigations or by a third-party investigator.

Workplace investigations can be triggered when an employee makes a complaint regarding sexual harassment, workplace violence, or discrimination, among other things.

Conducting workplace investigations regarding harassment of any form is required under the Occupational Health and Safety Act and under Bill 132. Further, the Ontario Human Rights Tribunal has awarded damages against employers for failing to conduct investigations regarding complaints of discrimination. While sometimes the law requires workplace investigations to happen it is always good practice to conduct investigations whenever an employee alleges misconduct in the workplace.

The manner in which a workplace investigation is conducted must, at the very least, accord with the principles of procedural fairness. While there are no explicit rules for how a workplace investigation ought to be conducted, it generally ought to be: objective, confidential, timely, and thorough.

The major steps typically involved in a workplace investigation include:

  • Obtaining information about the complaint from the employer;
  • Gathering documents related to the complaint;
  • Interviewing the complainant, responding party, and witnesses;
  • Creating a report regarding the evidence given and assessing credibility;
  • Relaying the conclusions of the report to the complainant and the responding party, as the report itself ought to be confidential; and
  • Generating recommendations regarding corrective measures, if necessary.

Risks and benefits of workplace investigations

Given that employers can face liability if they have not appropriately conducted a workplace investigation, it is important ensure the workplace investigator is knowledgeable about employment law, harassment and other related workplace legislation and laws.

One of the main risks of delaying investigations is the potential loss of evidence. It is best practice for a workplace investigation to be timely. Although during COVID-19 with some workplaces may be operating remotely, the need to do timely investigations remains. Even if the complainant and respondent may be temporarily working apart there is still a need to act promptly to maintain the integrity of physical evidence and witness memories.

Additionally, workplace harassment may occur even when employees are not working in physical proximity. Cyber-bullying can take place through email or social media and should always be on the employer’s radar.

Finally, delaying investigations may impact the workplace as it causes anxiety for both complainant and respondent and additional stress for the witnesses.

For these reasons, where feasible, it is important for employers to continue to conduct timely workplace investigations.

New technologies enable workplace investigations while social distancing

While it is preferable in many instances to do in-person investigations, technology such as ZOOM or Skype has created an opportunity to allow for investigations to be moved online. The investigator still has an opportunity to see the witness and make credibility assessments. COVID-19 should not be a reason to delay these important procedures.

As numerous employees now work remotely, it would be good practice to ask those interviewed to move to different rooms in their dwellings to ensure that privacy is protected during the investigation process.

Monkhouse Law provides employers with workplace investigation services and also advises them on how to participate in ongoing investigations. Contact us if you face a workplace complaint or require assistance with conducting workplace investigations.

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