Workplace Misconduct Complaints – “To Investigate or Not to Investigate, That is the Question”

Most private sector employers are not required to investigate alleged employee misconduct.

Even though there is no such requirement, we suggest that an employer investigate any alleged misconduct that it intends to rely on to prove “just cause”, or any alleged violation of the Ontario Human Rights Code (the Code). Some previously mentioned ways for employers to navigate workplace complaints can be found in this blog.

The Workplace Investigation Procedure: How Comprehensive Should it Be ?

When designing an investigation procedure, keep it simple. Do not prescribe too many required elements for the investigation. Some complex issues that can arise out of these investigation procedures have been listed here.

Remember that any outside adjudicator will expect an employer to follow its own investigation procedure for all complaints; not only “serious” complaints.

The Core Elements of a Workplace Investigation Procedure

The investigation should be commenced quickly and the complaint should be taken seriously. The employer should decide whether it is conducted by an internal or an external investigator on a case by cases basis.

The complainant must submit a complaint setting out the details of his or her allegation; that is; who did what where and did anyone witness the misconduct.

The respondent must have an opportunity to respond to the complaint against him or her.

The investigator should have the discretion to expand the investigation to speak to other people when considering the complainant’s core allegations.

The complainant and respondent (and any witnesses) should be instructed not to discuss the allegations or the investigation with anyone else.

Neither the complainant, the respondent, nor any other person who is being interviewed should have the right to bring a representative to any investigation meeting. The employer should decide this issue on a case by cases basis.

The employer should decide whether the investigator is required to prepare a written report and whether the complainant or the respondent have the right to review it or respond to it. The employer should decide this issue on a case by case basis.

The employer should communicate the outcome of the investigation to the complainant.

Evaluating an Investigation under the Human Rights Code

Under the Code, an employer has a duty to conduct a reasonable investigation if an employee makes a discrimination complaint. When deciding whether an investigation is reasonable, the Ontario Human Rights Tribunal will consider whether (i) there was a suitable anti-discrimination/harassment policy with a proper complaint mechanism in place;  (ii) once an internal complaint was filed, whether the employer treated it seriously, promptly and sensitively and reasonably investigated it; and (iii)  the employer communicated its findings and actions to the complainant.

Employer Takeaways

1. If you plan to fire someone for “just cause” make sure you confront the employee with the alleged misconduct and provide the employee an opportunity to respond before you terminate the person. There may be a reasonable explanation. A short conversation may save you significant termination pay and legal costs. More information about just cause for termination can be found here.

2. Employees should be encouraged to report discriminatory behavior and the employer should have a complaint procedure in place so this behavior can be investigated. If no investigation procedure exists then the employee is forced to complain to the Ontario Human Rights Tribunal; a place that employers should try to avoid.

Doug MacLeod has been advising employers on employment law issues including workplace investigations for over 25 years. He can be reached at (416) 317-9894 or at [email protected]