Workplace Investigations
The Toronto workplace investigators at Massey LLP say that 19.78 million Canadians spend 60 per cent of their waking hours at work – having a protected workplace with a solid workplace investigations policy is not only vital, it’s expected. So, it’s advantageous for employers to have outside employment counsel at the ready who can provide guidance using their knowledge of the various employment laws and the potential ramifications of an improperly handled workplace investigation.
While it’s new that workplace investigations are reportedly becoming more common, the Toronto workplace investigations team at Massey LLP is not new to leading these types of probes, having conducted workplace investigations for our employer clients for many years.
Our Toronto workplace investigators know this can be a complex process for employers and it’s beneficial for them to have a seasoned legal professional at the helm, who is trained and experienced at conducting workplace investigations, collecting and assessing the facts, and drawing independent, impartial conclusions.
The rise in the number of Toronto workplace investigations in Ontario is largely due to statutory changes that have come into effect. That means employers legally must have workplace harassment and violence policies that include how to report and investigate complaints.
The legislative changes appear to have opened the floodgates for employers to also go a step beyond the law and launch Toronto workplace investigations for matters that fall outside those legally mandated – and given the stats, that’s positive for employees and employers.
Our Toronto workplace investigators at Massey LLP point to a 2021 study from a collaboration between Western University, the Canadian Labour Congress, and the University of Toronto that revealed 71.4 per cent of Canadian employees reported enduring at least one form of abuse and harassment while on the job. The survey looked inside all kinds of workplaces, from corporations to blue-collar jobs, in private and public sectors, and found sexual, verbal, and online harassment and intimidation tactics reigned.
Further, our Toronto workplace investigators know the survey found that employees most likely to work in a toxic environment or be sexually harassed are:
- People of colour
- Indigenous peoples
- Women
- LGBTQIA+ community members
It is not just helpful for employees to be able to engage in workplace investigations to reduce problems in the workplace, it is a key element of employer risk management.
While it’s positive that instances of Toronto workplace investigations are growing, it’s important for employers to work with an independent third-party employment lawyer team, led by Frank Portman . He is trained and experienced in carrying out these types of inquiries, knows the pertinent laws, conducts investigations fairly with impartiality and no pre-conceived notions, and understands how to resolve workplace disputes smoothly.
Ontario legislation that governs Toronto workplace investigations
In 2010, Bill 168, an amendment to the Occupational Health and Safety Act (OHSA) became law to strengthen employee protections from workplace violence and harassment. Since then, employers are required to develop and maintain a workplace harassment policy and implementation program, including Toronto workplace investigations procedures.
In 2016, Bill 132, an amendment creating new rules under the Act, strengthened employers’ required legal actions in matters involving sexual violence and harassment. The Act also makes Toronto workplace investigations a strictly legal requirement if employees aren’t given the right to refuse unsafe work.
Employers and their directors who fail to put in place the mandated investigation measures required by the OHSA could face up to $1,500,000.00 in fines and jail terms for up to 12 months.
Our Toronto workplace investigators note if an employee is alleging workplace discrimination or harassment, under the Ontario Human Rights Code (OHRC) the employer must conduct a workplace investigation.
The Toronto workplace investigators at Massey LLP note a Code of Practice was created to help employers meet their legal requirements under workplace harassment provisions of the OHSA by complying with the practices it sets out and includes protections for employees from:
Workplace harassment, including bullying and cyberbullying: Conduct or comments that are humiliating, demeaning, offensive or embarrassing to an employee. These can also be actions that isolate, discriminate, or intimidate.
Workplace sexual harassment: Our Toronto workplace investigators say this is a course of unwelcome conduct because of an employee’s sex, gender identity, or sexual orientation. It also covers unwelcome sexual advances from an employee with higher authority.
Workplace violence: Force or an attempt to use force that causes injury, or threats to hurt a co-worker. The Toronto workplace investigators at Massey LLP add that this could include offences under the Criminal Code.
Under the OHSA, an employer must investigate these complaints promptly, objectively, confidentially, and thoroughly.
Toronto workplace investigators: why work with us on workplace investigations
The Toronto workplace investigators at Massey LLP know that the person conducting a workplace investigation can be someone who works there – including a supervisor, manager, or human resources professional. But given the increased reputational and legal stakes, it’s important to have in the lead an external lawyer who is experienced in these matters, and neutral.
Our Toronto workplace investigators note that bringing on third-party counsel could help avoid any conflicts that may arise and save costs by avoiding litigation down the road with a well-considered report produced by an independent legal professional.
There are many reasons a workplace investigation may be appropriate beyond complaints that are legally mandated. Our Toronto workplace investigators have conducted probes in those other circumstances in which an investigation was an important element of risk management, and our approach is effective.
Our Toronto workplace investigators have worked on matters like these:
- Cases where an employer anticipates the potential to dismiss an employee for just cause
- Cases where an employer is concerned that there may have been illegal activity within the organization or by employee(s) with respect to outside organizations
- Cases where misconduct is alleged against a senior member of the organization where an internal investigation would need to report to that individual
- Cases where a board of directors is concerned about the behaviour or performance of senior management
- Cases where the decision of the organization is based on the outcome of the investigation and that decision is likely to lead to litigation.
Our Toronto workplace investigators have years of experience in this practice area and explain that an investigation serves two purposes:
- It helps ensure that the organization can make the best-informed decisions possible, particularly in situations that could easily give rise to litigation
- It helps defend that organization’s actions since they can point to the involvement of a third-party investigator as cleansing the decision-making of any bias and of making a proper response to serious allegations. This can help avoid claims of bad faith conduct or punitive damages in subsequent litigation.
Our Toronto workplace investigators warn about poorly handled cases that led to litigation, punitive awards
The Toronto workplace investigators at Massey LLP, practice group lead counsel Frank Portman , knows the legal landscape of Toronto workplace investigations in Ontario.
It’s important for an employer to seek a solid, neutral lawyer to conduct the probe to avoid disastrous outcomes like cases Pate Estate v. Galway-Cavendish and Harvey; Boucher v. Wal-Mart Canada Corp.; or McNeil v. Brewers Retail, where a proper workplace investigation could have stopped an employer from making erroneous judgments costing them hundreds of thousands of dollars.
In Galway and McNeil, the employer pressed unfounded criminal charges. A proper investigation could have told them there was nothing to the allegations, say our Toronto workplace investigators.
In Boucher, a workplace investigation would have helped the employer respond properly to a bad case of workplace harassment. Since they took the wrong steps, they got hit with hundreds of thousands of dollars in unnecessary punitive awards. Even had they been wrong, saying that they had engaged a third-party workplace investigator and had made their decisions in good faith would have gone a long way to mitigating or eliminating the basis for the punitive damages awards.
Meanwhile, our Toronto workplace investigators note that when it comes to OHSA and Human Rights Code investigations, they’re a special type since they are mandated by law. So, workplace investigators like those on our team, need to know what the requirements are for such an investigation; there are certain notification and confidentiality requirements that are codified in law.
Finally, one important consideration in Toronto workplace investigations is privilege. Employers often try to assert privilege over investigations, but increasingly it is difficult to do so. The only way to have a hope of privilege is to hire a lawyer who is also a Toronto workplace investigator. To maintain a case for privilege, the investigator needs to be very careful about what they say, disclose, and how they do it. This is particularly true in the case of statutorily required Toronto workplace investigations since such investigations require a certain level of disclosure to the complainant and respondent.
5 reasons why Toronto workplace investigations are critical for employers
The Toronto workplace investigators at Massey LLP say that conducting workplace investigations isn’t just a way for an employer to show they take allegations that are brought to their attention seriously. Solid, independent Toronto workplace investigations performed fairly, lower a company’s exposure when facing accusations of discrimination by employees, build a healthy business culture, and can halt issues from recurring.
Our Toronto workplace investigators note that the purpose of an investigation is a fact-finding mission to determine exactly what happened. One of the goals is to figure out if any legal action needs to be taken and if so, what remedies there are. Another goal of Toronto workplace investigations is to repair the workplace if the environment has been adversely affected, using what is uncovered to make it safer and more pleasant.
Toronto workplace investigations are also important for an employer to limit their own legal liability. Some investigations may be mandated under legislation, common law, or the businesses’ policies. A failure to perform a good investigation can undermine legal defences if the company’s actions to resolve an issue are called out later.
The 5 reasons why Toronto workplace investigations are important for employers are:
- Breaching laws: An uninvestigated allegation or complaint risks an employer getting into trouble under the OHSA and/or the OHRC and could lead to charges and penalties, warns a Toronto workplace investigator at Massey LLP.
- Loss of reputation: To become an employer with a great reputation takes years of hard work and dedication to detail. But unfortunately, a company’s reputation can be lost in just one day when you’re the negative headline in major newspapers, advise our Toronto workplace investigators. A poor reputation as an employer leads to recruiting problems—no one wants to work in a toxic workplace—and that’s just one negative consequence.
- Mental health issues: Mental health claims, PTSD, and threats of violence in the workplace are issues employees may experience and an employer could face if investigations aren’t launched after allegations are levied. Our Toronto workplace investigators understand how harassment and trauma can affect an employee. Unfortunately, those feelings are deeper and more long-lasting than you may think.
- Financial costs: The Toronto workplace investigators at Massey LLP say costs that could be incurred if there isn’t an investigation include: increased absenteeism, higher disability costs, more grievances, decreased productivity, more conflict among staff, high turnover, poor morale, and ultimately higher liability and legal costs. Increased costs for the Employee Assistance Program (EAP) could also happen.
- Negative media attention: The Toronto workplace investigators at Massey LLP say contrary to popular belief, not all news is good public relations. Allegations and complaints of discrimination, harassment, and violence may get the business and its leaders in the spotlight, but for all the wrong reasons.
Types of complaints, allegations that spark Toronto workplace investigations
We know from experience that when employees lodge a complaint, especially of violence or harassment, it’s an important trigger for employers to initiate Toronto workplace investigations.
Our Toronto workplace investigators can assist you investigate any of these allegations:
- Abuse of authority
- Age
- Ancestry (creed)
- Bad management
- Bullying, cyberbullying
- Breach of policy/rule
- Citizenship
- Code of conflict infractions
- Colour
- Conflict of interest
- Disability
- Discrimination
- Ethnic origin
- Family status
- Fraud
- Gender expression
- Gender identity
- Harassment
- Marital status
- Misuse of employer property
- Place of origin
- Prohibited use of drugs/alcohol
- Race
- Record of offences
- Religion
- Sexual harassment
- Sexual orientation
- Sexual violence
- Substance abuse
- Theft
- Toxic/hostile work environment
- Virtual workplace harassment
- Whistleblowers
- Workplace bullying and violence under the Canada Labour Code
The core principles of our effective Toronto workplace investigations
The Toronto workplace investigators at Massey LLP understand that when an employer decides a workplace investigation must happen, there are two main leading factors: a) determining the scope and b) who will be the impartial investigator. The goal is to provide a fair investigation for both parties involved to reach a sound resolution.
Toronto workplace investigations are performed to get to the bottom of what happened when there’s an allegation affecting the workplace that potentially violates the law or your company’s policies and standards. As an employer facing the prospect of meting out discipline, you’re bound by fairness, and as such, have an obligation to properly carry out Toronto workplace investigations.
Our team of Toronto workplace investigators follows these core principles as the framework for a sound workplace investigation:
- Act promptly
- Balance tricky Privacy Act issues
- Be fair
- Be thorough
- Brief witnesses on their rights
- Conduct interviews/be prepared
- Establish a clear framework
- Give the accused employee a chance to tell their side
- Have no bias
- Protect employees at risk
- Provide company’s defence
- Remain neutral
- Review disclosure before interviews
- Reinforce employer’s commitment to a safe workplace
- Set the stage for discipline
Types of employers our Toronto workplace investigations can work for
Our Toronto workplace investigators at Massey LLP conduct investigations for a range of employers in Toronto and across Ontario and are frontrunners to investigate complaints in these workplaces:
- Advertising and marketing
- Colleges and universities
- Emergency and paramedic services
- Family offices, small businesses
- Financial services
- Fire services
- Government – federal, provincial, municipal
- Hospitals, healthcare facilities
- IT and tech companies
- Manufacturing
- Media and entertainment
- Municipalities
- Non-profits
- Police service
- Private companies
- Publicly traded companies
- Retail
- Schools
- Sports organizations
- Telecommunications
- Transportation
- Unions
- Universities and college
Call our Toronto workplace investigators without delay
When it comes to serious allegations of employees of harassment and discrimination, time is not on the employer’s side. It is always in the best interests of an employer to launch an independent, fair, and thorough workplace investigation sooner rather than later. Call or email our Toronto workplace investigators to get started today.
