interest, breach of fiduciary duties, improper disclosure of confi-dential
information, etc.), bullying, poisoned work environment
and retaliation, to name a few.
As a result of recent legislative changes, employers are now
obligated by law to conduct workplace investigations pursuant
to section 32.0.7(1) of the Occupational Health and Safety Act,
RSO 1990, c O.1 (OHSA) in order to protect workers from
workplace harassment. An employer is obligated to conduct a
workplace investigation once it is aware of a complaint, work-place
misconduct, incident or an issue whether it is by way of a
formal complaint, brought forward by a non-aggrieved party or
anonymously to the employer’s attention. Further, the Ministry
of Labour (MOL) pursuant to OHSA section 55.3 can require
an employer to conduct a workplace investigation by an impartial
person who possesses specific knowledge, experience or qualifi-cations
at the employer’s expense. A MOL required workplace
investigation can occur from a MOL blitz or by an employee
reporting that an employer has failed to conduct a workplace
investigation in contravention of its OHSA obligations. Other
developments have increased the standard by which workplace
investigations must be conducted.
The investigation which is to be conducted is required to be
appropriate in the circumstances. However, applicable legislation
does not define what is considered “appropriate.” Accordingly, it
is left up to the company to try to determine what is considered
“appropriate in the circumstances” at its own peril. General param-eters
for what is considered appropriate are for the investigation to
be impartial, timely, fair and thorough and for the investigator to
be at least arms-length from the parties involved.
Unfortunately, as is often the case, an employer is not necessar-ily
the best suited, prepared or has the required skills to conduct
a workplace investigation, which results in an inadequate or
improper investigation. This generally also leads to an incomplete
and deficient investigative report which cannot withstand tribunal
or judicial scrutiny. Consequently, the Courts often denounce such
investigations as improper, inadequate and/or insufficient, result-ing
in significant exposure to liability to the employer. Accordingly,
it is best to utilize an external third-party investigator with spe-cialized
skills in workplace investigations to assist an employer in
conducting an investigation into any complaints, issues and griev-ances
– that the company has become aware of – and who can
prepare an appropriate investigative report (which is often utilized
and relied upon in subsequent litigation), which are more suited to
survive scrutiny of the Courts. n
Peter V. Matukas is an employment lawyer, a credentialed workplace
investigator by the Association of Workplace Investigators and leads
the workplace investigations group at Harris + Harris LLP.
conflict resolution
alphaspirit / 123RF
THE INVESTIGATOR CAN
EITHER BE INTERNAL TO
THE COMPANY OR AN
EXTERNAL THIRD PARTY
HIRED BY THE COMPANY
TO INVESTIGATE THE
COMPLAINT OR ISSUE.
42 ❚ NOVEMBER 2018 ❚ HR PROFESSIONAL
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