When an employer’s duty to investigate is triggered following a complaint, a workplace investigation “appropriate in the circumstances” must be conducted. But who’s the judge of what is considered appropriate? 

In continuation from our previous article, here are some more common questions employers wonder about in workplace investigations. Particularly, this article will highlight the role of Ministry of Labour (MOL) in Ontario and the scope of their powers in enforcing the Occupational Health and Safety Act (OHSA) as it relates to workplace violence and harassment. 

What is the extent of an employer’s confidentiality obligations in an investigation? 

Investigations should maintain confidentiality to the extent possible. However, information may need to be shared with relevant parties in order to properly investigate a complaint. This means that although complete confidentiality cannot be guaranteed, employers can still take the necessary measures to restrict disclosure of personal and confidential information gained through the course of the investigation to only those with a need to know (e.g., witnesses, HR, union, legal counsel). 

Under the OHSA, employers are not legally obligated to share the results of the investigation with any party other than the complainant or respondent in order to protect the privacy of the individuals involved to the extent possible.

Once an investigation is complete, what are employers required to provide to the complainant and respondent? 

Under OHSA provisions, it stipulates that

“the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation”. 

It is important to note that the result of an investigation is not the same as an investigation report where findings of fact are summarized. An investigation report is restricted to only those designated employer contacts overseeing the investigation to help them make an informed decision. It is not provided to parties of the complaint at the end of an investigation in order to protect witness privacy and confidentiality. 

What recourse do employees have if they are not satisfied with the employer’s handling of the investigation?

In Ontario, employees have the ability to file a complaint with the Ministry of Labour should they have concerns about how the complaint was handled. If it is determined that the complaint falls under the scope of the OHSA provisions, the Ministry will then assign an inspector to handle the case. Through this process, if it is determined that an investigation was not carried out properly, the inspector has the ability to mandate the employer to hire an independent investigator who possess the necessary skills, training and knowledge to conduct a workplace investigation at the employer’s expense.

What is the role of the Ontario Ministry of Labour in workplace investigations?

Simply put, their role is to ensure that the employer is complying with the OHSA’s requirements as it relates to the provisions of workplace harassment and violence. The objective is to help protect employees and maintain safe and respectful workplaces in line with workplace laws. 

The inspectors have broad statutory powers to do any of the following:

• Inspect the workplace with the right to enter unannounced without prior notice;
• Review the employer’s policies and procedures on workplace violence and harassment;
• Investigate the employer’s handling of the complaint;
• Order corrective actions to comply with the OHSA requirements;
• Compel documentation; or
• Impose fines and penalties for serious violations or repeat offenses.

What they don’t do however, is investigate the individual harassment complaints. Instead, the inspectors can order the employer to have the complaint investigated by a third-party at the employer’s cost as previously noted. The MOL focuses on ensuring that employers have proper policies, investigation procedures, and response mechanisms in place.

Can the Ministry of Labour require that the investigation report be produced?

Yes, the inspector will typically ask the employer to provide evidence that a proper investigation was conducted (as required under OHSA). This includes reviewing:

• The scope of the investigation.
• Whether the investigator was impartial and qualified.
• The investigation report and its findings.
• The actions taken (if any) based on the investigation results.

This very question was examined by the Ontario Labour Relations Board (OLRB) where an inspector’s order to review an unredacted copy of the investigation report was challenged – Wal-Mart Canada Logistics ULC v Gail Stewart.

In this case, the OLRB’s ruling reinforced that MOL inspectors have the authority to request and review the full investigation report in order to carry out their statutory duties in determining whether the employer’s investigation was conducted as appropriate in the circumstances. 

Stay tuned for more FAQs and employer insights in our next blog of this series.