Employers need properly trained workplace investigators to investigate employee complaints or face the possibility of stiff financial penalties or orders from the Ministry of Labour, says Toronto employment lawyer Doug MacLeod.
The principal of MacLeod Law Firm tells AdvocateDaily.com that changes to Ontario’s health and safety legislation along with recent court decisions dictate that employers set up internal workplace investigation procedures.
“There are new types of damages that employers can be ordered to pay if they don’t investigate properly,” he says.
“There’s a trend toward more workplace investigations, which is a relatively recent phenomenon in employment law,” MacLeod says. “Much of it is driven by new laws that have recently come into play and because of court cases in which judges are ordering employers to pay additional damages because of faulty investigations.”
He urges employers to appoint a staff member who is well-versed and properly trained to deal with workplace investigations but, he says, many small- and medium-sized businesses do not have a person who has received this kind of training.
MacLeod and employment lawyer Monica Jeffrey, with JMJ Workplace Investigation Law, are hosting training seminars on workplace investigations in Barrie Feb. 1, 2017 and in Toronto on Feb. 6. Jeffrey who is a full-time workplace investigator has written extensively on dealing with employment disputes and managing workplace harassment.
“With the recent changes to the law, I am telling employers they need to have an employee who is properly trained to conduct an internal investigation,” MacLeod says. “As of September, employers are required to investigate workplace harassment complaints” under the Ontario Occupational Health and Safety Act (OHSA).
OHSA requires companies to put a workplace harassment investigation procedure in place to deal with workplace harassment complaints, and investigations “have to be conducted by someone who has the appropriate training,” he says. If no such person exists, then the Ministry of Labour can order the employer to hire an external investigator at the employer’s expense, MacLeod says.
Employees in a union or non-union setting have the right to file a complaint, and employers are required to investigate, he says. In a non-union environment, an in-house investigator, with guidance from the complainant, could launch an informal process in hopes of achieving an agreed upon solution, MacLeod adds.
If not, he says a formal investigation is launched where the aggrieved party is interviewed about the incident or incidents, as are any witnesses. The respondent then gets an opportunity to reply to the complaints.
“Most small- and medium-sized employers don’t have employees who are trained to investigate, so they have two options: they can either have someone trained or they can hire an external investigator who is trained to deal with the complaint, which can be very expensive,” he says.
MacLeod says in smaller organizations the job may be taken on by someone wearing multiple hats but “they won’t have the tools in their tool kit to do this kind of thing unless they get some training. And this training doesn’t have to be time consuming or expensive.”
Under human rights legislation, employees can file complaints dealing with harassment and while it doesn’t require firms to have a complaints process in place, MacLeod says he believes “it’s really important to have one anyway.
“If you have a policy and someone files a complaint, you need to have somebody already trained in this kind of investigation, because if you don’t, the employee might not feel comfortable and may go to the Ontario Human Rights Tribunal instead,” he says.
MacLeod says having a complaint policy with an investigation procedure in place is “good for everybody,” because it allows employees to deal with issues that may affect their abilities and efficiency at work, and it improves the overall corporate culture.
“When an employer has a policy that doesn’t permit or condone harassment then the organization is sending a strong message to employees. Employees are being told to put up their hand if they feel they are being harassed and the organization is saying they will take care of it,” MacLeod says.
With a complaints process, it tells employees it’s OK to come forward and “as soon as you do, the company is going to assign someone who knows what to do to investigate and stop it right away,” he says.
“This is good for employees who are being harassed and it’s also good for corporations because they can stop the problem right away,” MacLeod says.
Along with amendments to OHSA, MacLeod says it is important for employers to know that human rights adjudicators will assess damages against employers for inadequate investigations. Furthermore, in wrongful dismissal actions in the courts, judges in some cases have been awarding punitive or additional damages because of faulty investigations, he says.
“Lately there’s new liability — new types of damages — that employers can be ordered to pay if they don’t conduct a proper investigation,” MacLeod says. Having a person on staff who is trained on how to conduct a workplace investigation “is a form of preventative medicine.”