Incidents can occur at workplaces that require employers to investigate. Sometimes these incidents result in termination.
If you are the subject of a workplace investigation, it is important to keep in mind the following:
- The investigation may be used to try and prove just cause in order to terminate your employment without notice or payment in lieu of notice. Just cause is explained in more detail here.
- The employer should follow its investigation procedure for all complaints, not only “serious” complaints.
- The employer may conduct an investigation using an internal investigator, or hire an external investigator. This is the choice of the employer, unless it is proscribed in the employer’s policy.
- If a complaint has been made against you for inappropriate conduct, you must have an opportunity to respond to the complaint.
- You do not necessarily have a right to bring a support person or representative to an investigation meeting unless it is provided for in the employer’s policy.
- You may be able to review any report about the investigation.
If the investigation is conducted because of a complaint of harassment or discrimination under the Ontario Human Rights Code, there are additional duties on the employer. The employer must:
- Treat the complaint seriously, promptly and sensitively.
- Conduct a reasonable investigation.
- Communicate the findings and actions to the complainant
If your employer does not conduct an adequate investigation after a complaint under the Human Rights Code, you may be entitled to damages even if the Human Rights Tribunal finds that harassment or discrimination did not take place. For more information on human rights protections, see here.
Additional tips for employees
- Make sure you find out if there is an internal investigation policy. If so get a copy and carefully review it.
- Before you are interviewed, ask for a written copy of the allegations against you. If the employer refuses then bring a pad of paper and a pen to the interview and write down all questions. If you don’t know the answer to a question on the spot then tell the employer that you will provide a more comprehensive answer once you have had time to adequately answer the question. For example, sometimes you will know that you exchanged emails with someone on a topic but you can’t remember when it happened or what information was exchanged. Don’t guess.
- If at the end of the interview the investigator asks you to sign a written statement tell the investigator you will review it at home and then return it. Make sure you review the statement with a lawyer before signing it.
If you have been the subject of a workplace investigation and would like to speak to an employment lawyer, please contact us at email@example.com or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
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