Ontario employers are required to have a written policy that addresses workplace violence, workplace harassment, and sexual harassment in the workplace. The policy must include the following components:
- define the different types of workplace harassment
- provide employees with guidance on what to do/how to/who to report concerns/allegations
- identify available resources for assistance
- explain documentation requirements
- identify how a determination for an investigation is made
- explain the steps that will be taken to investigate
- identify the types of remedies that might be implemented if allegations are verified.
The policy must clearly articulate that the workplace does not condone behaviours that conflict with providing a safe and respectful work environment and should articulate the employer’s commitment that there cannot be any punitive measures taken against an employee for bringing a complaint forward in good faith.
Who Should Conduct a Workplace Investigation?
The policy should identify who will conduct the investigation. i.e. HR Representative (if one exists), senior member of the leadership, external investigator. HR investigations may be subject to Ministry of Labour scrutiny and it crucial that the investigative process, documentation and report back are carried out.
In Ontario, an employer has mandatory obligation to conduct an investigation appropriate in the circumstances. The person who is conducting the investigation can be internal to the workplace (e.g., supervisor, senior manager, human resources staff), or may be someone external to the organization (such as a licensed private investigator, human resource professional, lawyer, or someone who holds some other professional designation).
To satisfy an employer’s mandatory obligation, employers must ensure that the person conducting the HR investigation is experienced and knowledgeable in the workplace harassment and reprisal provisions under the OHSA and should have received information and instruction on the employer’s workplace harassment policy and program.
Where an incident occurs and an employer fails to investigate or does not conduct a proper investigation, the Ministry of Labour may view the investigation as void and appoint an external investigator at the expense of the employer. Failure to conduct a proper investigation can be very costly and harm the employer’s brand and reputation.