Conducting Workplace Investigations: Ensuring Fairness for Employees and Protection for Employers

Workplace investigations are critical to maintaining a safe, respectful, and legally compliant work environment. Ensuring fairness for employees while protecting employers from legal and reputational risks requires a structured and impartial approach. A poorly conducted investigation can lead to significant consequences, including employee dissatisfaction, legal challenges, workplace conflict and financial liability.

At D&DCPD Human Resources Consultants, we assist both employees and employers by ensuring workplace investigations are conducted fairly, transparently, and in compliance with the law.

What is required?

Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers must conduct investigations into workplace harassment allegations that are “appropriate in the circumstances.” However, investigations must not only comply with legal requirements but also uphold procedural fairness to protect employees from unjust treatment and employers from liability.

Employees have the right to a fair and unbiased investigation process that considers their concerns, protects their confidentiality where possible, and provides an opportunity to respond to allegations. Employers must ensure investigations are thorough, well-documented, and defensible in case of legal scrutiny.

Here are six key elements of workplace investigations that help ensure fairness for employees and protection for employers.

1. Prompt and Thorough Investigations

Timeliness is essential to ensuring fairness and mitigating risk. Investigations should begin as soon as possible to prevent evidence loss and fading memories. The Ministry of Labour recommends completing investigations within 90 days unless exceptional circumstances require more time.

• For Employees: Delays can impact the reliability of evidence. If an investigation is taking too long, employees should request updates and document any concerns.

• For Employers: Delays may create liability risks and erode trust in the workplace. Employers should establish clear timelines and, if necessary, engage external experts to ensure efficiency.

  
  

D&DCPD Human Resources Consultants help employers streamline their investigations while supporting employees in advocating for a timely and fair process.

2. Confidentiality with Realistic Limits

Confidentiality is crucial in workplace investigations to protect employees and maintain the integrity of the process. However, absolute confidentiality is not always possible, as courts, boards or tribunals may require disclosure of certain details.

• For Employees: Employees should expect a high degree of confidentiality but must also understand that, in some cases, information may need to be shared with relevant parties.

• For Employers: Employers must balance confidentiality with legal obligations, ensuring that investigation findings are handled appropriately.

  
  

D&DCPD Human Resources Consultants assist in developing clear confidentiality protocols that protect employee privacy while keeping employers legally compliant.

3. Clear Communication and Notice of Allegations

Employees who are the subject of an investigation have the right to be informed of the allegations against them and given the opportunity to respond.

• For Employees: Employees should receive written notice of allegations, time to prepare a response, and updates if new information emerges. They should also be informed that they can contact their Union representative if they are unionized or may speak to an independent counsel should they wish.

• For Employers: Employers must provide sufficient details to ensure a fair response while avoiding unnecessary disclosure that could compromise confidentiality or place witnesses at risk.

  
  

D&DCPD Human Resources Consultants guide employers in drafting clear notices and assist employees in ensuring they receive the information necessary to participate meaningfully in the process.

4. Impartiality and Unbiased Decision-Making

Fairness requires an investigator who is neutral and unbiased. Any perceived or actual conflict of interest can undermine the credibility of an investigation.

• For Employees: Employees should expect a neutral investigator and raise concerns if they perceive bias or conflicts of interest.

• For Employers: Employers must ensure that investigators remain impartial and do not allow unconscious biases to influence findings.

  
  

D&DCPD Human Resources Consultants offer unbiased third-party investigation services and provide training on recognizing and mitigating unconscious bias.

5. Proper Documentation for Transparency and Protection

Thorough documentation ensures that investigations are transparent, legally defensible, and provide clarity on decision-making.

• For Employees: Employees should ensure their statements are accurately recorded and request access to relevant findings where appropriate.

• For Employers: Employers should maintain detailed records of interviews, findings, and decisions to protect against legal challenges.

  
  

D&DCPD Human Resources Consultants assist in structuring proper documentation practices to protect all parties involved and ensure procedural fairness.

6. Corrective Action and Follow-Through

A workplace investigation is only effective if it results in appropriate action based on the findings.

• For Employees: Employees should expect appropriate corrective actions, whether disciplinary measures, workplace training, or policy changes if deemed appropriate.

• For Employers: Employers must implement fair and proportionate corrective actions while protecting themselves from potential legal claims.

  
  

D&DCPD Human Resources Consultants help employers implement corrective measures that align with legal and ethical standards while ensuring employees’ concerns are addressed.

Why Employers Must Get It Right

Employers who fail to conduct fair and legally sound investigations may face:

• Legal liability if procedural fairness is not upheld.

• Workplace conflict if employees feel investigations are biased or ineffective.

• Reputational damage if complaints are mishandled.

  
  

By implementing a structured, fair, and transparent investigation process, employers can mitigate these risks while fostering a workplace culture of accountability and respect.

How D&DCPD Human Resources Consultants Can Help

D&DCPD Human Resources Consultants support both employees and employers in ensuring workplace investigations are conducted with fairness and integrity. Our services include:

• Conducting impartial workplace investigations.

• Training employers on procedural fairness.

• Advising employees on their rights during an investigation.

• Assisting in developing investigation policies and protocols.

  
  

By ensuring fairness for employees and protection for employers, D&DCPD Human Resources Consultants help create a more just and legally compliant workplace environment. Whether you need assistance conducting an investigation, ensuring compliance, or advocating for fair treatment, our team is here to help.