hr practice
An experienced workplace
investigator will be able to
conduct a thorough investigation
All employers in Ontario, pursuant to the Occupational
Health and Safety Act, RSO 1990, c O.1 (OHSA) have
an obligation to provide a workplace free from harass-ment
and sexual harassment, and must also conduct an
investigation into incidents or complaints of workplace harass-ment
or sexual harassment. Employers and supervisors have a
positive obligation under sections 25(2)(h) and 27(2)(c) of the
OHSA to, “…take every precaution reasonable in the circum-stances
for the protection of a worker.”
In addition, pursuant to the Ontario Human Rights Code, RSO
1990, c H.19 (HRC), employers in Ontario must also provide
a workplace free from discrimination. Further, a company’s own
internal policies may provide for instances where an investigation
is required for incidents or employee’s conduct which may be con-trary
to such a policy or policies.
A workplace investigation is required in instances when there
is an incident or conduct in the workplace which infringes upon
an employee’s right to be free from harassment and sexual harass-ment
in the workplace, infringes upon an employee’s right to be
free from discrimination in the workplace or is contrary to the
company’s policies. The employer is required to investigate when
a complaint or grievance is made, or the employer becomes aware
of an issue requiring an investigation. Who the employer turns to
and entrusts with an investigation once it is aware of the incident,
issue or complaint, is critical.
Employers must recognize that ad hoc, cursory, superficial or
minimal investigations in an effort to satisfy their obligation to
investigate complaints, conduct or incidents will not be consid-ered
sufficient by Courts or the Ministry of Labour. Investigations
which are deemed improper and insufficient as a result of being
minimal, superficial or cursory elevate a company’s exposure to lia-bility
in litigation. Investigations of such a nature are likely to result
in the company being ordered by the Ministry of Labour pursu-ant
to OHSA section 55.3(1) to conduct a further investigation
bacho12345/123RF
Who Should Your
Workplace Investigator Be?
EXPERIENCE IS KEY WHEN DECIDING WHO WILL FILL THIS ROLE
By Peter V. Matukas, BA, LLB, AWI-CH
HRPROFESSIONALNOW.CA ❚ FEBRUARY 2019 ❚ 13
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