Workplace investigations can be triggered by complaints from employees, customers or other third parties. In all circumstances, employees should be provided with a reasonable workplace investigation which is fair and thorough. We discuss employee rights during a workplace investigation.
Procedural Fairness in Workplace Investigations in Ontario
Workplace investigations are generally not an enjoyable experience because they are predicated on the fact that there is a form of conflict amongst colleagues that cannot be easily resolved. However, despite an employee’s level of involvement with an investigation, all employees are entitled to procedural fairness. This entails:
Employers owe their employees the duty of procedural fairness and are bound to this principle. This means that employers should ensure that the procedural steps to address administrative decisions are exercised in a manner that are mindful of unconscious biases and seek to engage in an impartial process.
Practically, this equates to an employer not performing in some of the following errors as outlined in paragraph 37 of Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209), 2020 SKQB 96:
- Failing to act impartially
- Rushing to judgement before obtaining the facts
- Failing to be transparent or honest with the accused employee during the investigation process
- Failing to provide particulars of allegations to an accused employee
- Failing to provide the accused employee with an adequate opportunity to explain or respond
- Failing to consider an employee’s response
- Failing to interview witnesses with potentially relevant information
- Failing to consider other evidence, such as surveillance or computer records, which might be relevant to the investigation; and/or
- Failing to follow the employer’s own policies regarding the conduct of workplace investigations.
Can an employee refuse to participate in a workplace investigation?
Refusing to participate in the investigation and interview process can potentially become an issue of insubordination. Moreover, for employees that have direct involvement with the investigation, by not actively participating can result in an incomplete investigation, discipline or termination. (Klonopin)
Understandably, the balancing act of fostering relationships, but not getting involved in workplace drama can be daunting. There are likely many employees who would rather not be involved in a workplace investigation. Nonetheless, some employees may have an obligation to participate as a witness to an investigation, and similarly may face discipline if they refuse to participate. This obligation may be included in the employee’s employment agreement, collective agreement, or employer’s policies.
Can employees retain counsel or representation when participating in a workplace investigation?
Employees do not have an inherent right to counsel when undergoing an interview for a workplace investigation, irrespective of their capacity of involvement (see Honda Canada Inc. v. Keays, 2008 SCC 39 at para 77). However, employees are free to seek legal representation. This also applies to employee witnesses that wish to have legal counsel before engaging in a workplace investigation interview.
To note, this does not apply to unionized employees who are typically entitled to have the assistance of union representation during the investigation process based on the terms of the collective agreement.
Are employee witness statements within the workplace investigation confidential?
The Respondent of an investigation is entitled to a summary of the allegations; however, witness statements are strictly confidential. The Respondent employee is entitled to know the case made against them, but they are not entitled to full witness statements. The substance of the complaints is enough to fulfill the obligation to inform an employee about the complaints made against them. (see Clarke v. Syncrude Canada Ltd., 2013 ABQB 252 at para 53)
Can a former employee bring a complaint to their former employer?
Under the Canada Labour Code and its subsequent Regulations, former federally regulated employees may make a complaint up to three (3) months after the day in which they ceased to be employed by the employer. Alternatively, if notice of the occurrence was submitted before they ceased to be employed by the employer, then three (3) months after the day on which the resolution process has been completed.
The Employment Standards Act does not specifically address an employer’s duty to investigate with respect to former employees. However, two cases from the Ontario Grievance Settlement Board (see Ontario Public Service Employees Union (Ataw) v Ontario (Community Safety and Correctional Services), 2019 CanLII 65164 (ON GSB)) and the Canadian Human Rights Tribunal (see Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18) found that employers still have a duty to ensure a safety work environment, despite the immediate threat of the complainant, proper measures should be taken to investigate complaints that occurred at the workplace.
This article was written by Reshida Darrell, an Employment Lawyer at Monkhouse Law.
Monkhouse Law is an employment law firm located in Toronto focusing on employees’ issues. We provide affordable services in workplace investigations at both a fixed-cost and hourly rate so that our clients can choose their desired approach. If you require assistance, please contact us at 416-907-9249 or fill out this quick form for a free 30-minute phone consultation.