Workplace Investigation? Steps Businesses Can Take To Avoid Legal Trouble

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As an Employment/HR lawyer, one of the things I enjoy the most is leading Workplace Investigations. Although workplace investigations are stressful occasions for most, whether they be the Employer or Employee, I strongly believe that when a workplace investigation is done correctly, with the cooperation of all parties, great results will follow. This is not only the case for Employer businesses, who if workplace investigations are done right, can great limit their legal liability. Workplace investigations can often be satisfying for the Employee, who although bringing a complaint, can gain the satisfaction that their Employer actually cares for them, and is willing to go through the pain and effort of "getting things right".

During a workplace investigation, aside from requirements under the Ontario Health and Safety Act (OHSA) for an Employer to keep the complainant Employee informed during the investigatory process, important steps for an Employer business to take includes drafting an objective but thorough Report of Findings, as well as workplace policies or documents (what I call "Positive Steps Forward"). For example, after the conclusion of a workplace investigation, a Report of Findings documenting the process the Employer business took to investigate the claimant Employee's complaint, whatever it may be (i.e. harassment, reprisal acts, etc.), is necessary to uphold notions of procedural fairness in this Province. Implicit in any employment contract is the right of a safe work environment. That includes an Employee's protection from workplace harassment and/or any other complaint an Employee might bring to HR (or an equivalently designated position/manager).

A Report on the workplace investigation's findings are not only important to demonstrate an investigation was actually taken seriously (important if a judge is looking at it), but also to be an indicator that "Positive Steps" moving forward will also be taken by the Employer business. Examples of positive steps from a workplace investigation report include:

  • An Employer/Company "Bill of Rights";  
  • A Revised or New Policy on Harassment, Reprisal, etc.;
  • A Revised or New Program on How to Implement Policies on Harassment, Reprisal, etc.;
  • Instruction Sessions or Meetings Explaining to Company Employees What Hot Topic Issues such as Harassment Actually are;
  • A Clear Policy On Who an Employee Should Go to if Wanting to Report a Complaint;
  • Several Complimentary Sessions With a Health Care Professional for the Employee Bringing the Complaint; 

Steps such as these are certainly important for Employer businesses. In fact, cases within the last decade such as Bassanese v German Canadian News Limited et al and Boucher v Wal-Mart Canada Corp. have awarded workplace awards to Employees in the range of $50,000-$200,000, not only for workplace issues such as harassment, but simply because the Employer business failed to take any meaningful steps regarding a proper workplace investigation.

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In my case, I always ensure that every client who hires my services to conduct a Workplace Investigation, gets a thorough analysis and subsequent Positive Steps (i.e. Workplace Bill of Rights, Policies on Harassment) to ensure my business client's legal rights are protected. Alternatively, if an Employee has faced issues such as harassment, bullying, or belittling conduct in the workplace, I continue to proudly guide these clients in seeking the justice they deserve. Are you feeling stressed with the possibility of a Workplace Investigation, or are experiencing issues that might run contrary to Ontario's Health and Safety Act? Please drop me a line. I'd love to hear from you!

Have a Happy Victoria Day Long Weekend to all!


Aaron Miller is a Toronto-based lawyer who is the proud owner of Aaron Miller, Barrister & Solicitor. Aaron is also Legal Counsel for Executive Furniture Rentals in Toronto. Aaron can be reached at 416-659-6665 and aaron@aaronmilleryourlawyer.com. A full list of legal services offered by Aaron Miller, Barrister & Solicitor can also be found at www.aaronmilleryourlawyer.com

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