This resource does not replace the Occupational Health and Safety Act (OHSA) and its regulations and should not be used as, or considered, legal advice. Health and safety inspectors apply and enforce these laws based on the facts they find in the workplace.

Overview

When workplace harassment occurs, workers and employers should refer to the Occupational Health and Safety Act (OHSA) to understand their duties.

Under section 32.0.7 of the Occupational Health and Safety Act, an employer must ensure that an investigation is conducted into incidents or complaints of workplace harassment.

Appropriate investigation

The workplace harassment investigation should be:

  • done promptly
  • objective
  • confidential
  • thorough

Investigate as soon as possible

Employers should ensure that the incident is investigated as soon as possible, ideally within 90 days or less, unless there is a compelling reason why a longer investigation is needed (for example, there are multiple witnesses or a key witness is unavailable due to illness).

Keep information confidential

Information about the incident or complaint, including information about the people involved, should not be disclosed, unless the disclosure is:

  • necessary to protect workers
  • needed to investigate the incident or complaint
  • needed to take corrective action
  • otherwise required by law

Who to interview

It is recommended to interview:

  • the worker who allegedly was harassed
  • the alleged harasser(s)
  • any relevant witnesses

What to ask in the interview

When interviewing, the interviewer should ask specific questions about the incident or complaint, for example, what did the person being interviewed:

  • see
  • hear
  • experience

The interviewer should take detailed interview notes, and collect and review all relevant documents from the worker, alleged harasser, relevant witnesses and the employer.

Investigation template

Employers can find an investigation template in the Code of Practice to Address Workplace Harassment. Employers may also want to refer to Part III (Employer Duties) of the Code of Practice for more information.

Person conducting the investigation

The person conducting the investigation should not be:

  • involved in the incident
  • under the direct control of the alleged harasser

The person conducting the investigation can be either:

  • internal to the workplace, such as:
    • a supervisor
    • a senior manager
    • human resources staff
  • working at another employer location (for example, a corporate office)
  • someone external to the organization, such as:
    • a licensed private investigator
    • human resource professional
    • lawyer
    • someone who holds another relevant professional designation

The person conducting the investigation should:

  • know about the workplace harassment and reprisal provisions under the OHSA
  • have received information and instruction on the employer’s workplace harassment policy and program

There is no requirement under the OHSA for the person conducting the workplace harassment investigation to have a licence. However, a person whose work primarily consists of conducting investigations into the character or actions of others may have to have a licence under the Private Security and Investigative Services Act, 2005.

Order for an impartial person investigation

Depending on the circumstances, a ministry inspector may order an employer to have an investigation carried out by an impartial person who has specific knowledge, experience or qualifications. The employer would pay for this investigation and receive a written report when it is complete.

When an impartial person investigation is needed

An inspector may order an impartial person investigation if:

  • the alleged harasser is the employer and a person internal to the workplace conducting the investigation would be unduly influenced by the alleged harasser’s high-ranking position
  • the employer and/or organization has not effectively dealt with or addressed workplace harassment complaints in the past (for example, they have had multiple complaints about the same person or behaviour)
  • the employer can’t ensure that the investigation will be conducted objectively by someone internally

Knowledge, experience or qualifications of impartial investigator

The impartial investigator should possess knowledge, experience or qualifications to conduct an appropriate investigation. This will depend on the circumstances of the case, and could include:

  • knowledge of the workplace harassment and reprisal provisions under the OHSA and other applicable laws
  • experience in conducting workplace investigations and dealing with confidentiality and privacy in the context of those investigations
  • experience preparing comprehensive reports
  • experience dealing with complex and/or sensitive situations

Who is an impartial person

An impartial person:

  • is unbiased
  • has no conflict of interest

The impartial person can be someone:

  • in the organization, such as a member of the human resources department
  • associated with the organization, such as someone at a related franchise or a corporate office
  • external to the organization
  • is in good standing with their professional body (if applicable)

If it would be more appropriate for a third party to investigate, examples of third party investigators could include:

  • people from a business association
  • a human resource professional
  • a lawyer
  • a licensed private investigator

If someone conducts workplace investigations as a primary part of their business, they may need to be licensed—usually as a lawyer or a private investigator.

After the investigation

The employer must ensure that the results of the investigation and any corrective action are provided, in writing, to:

  • the worker who allegedly experienced workplace harassment
  • the alleged harasser, if they are a worker of the employer

The results of the investigation are not the same as the investigation report. The results of the investigation are a summary of the findings of the investigation.

Learn more about the requirement to share results of the investigation in Part III of the code of practice to address workplace harassment.

Investigation scenarios

The following are some investigation scenarios to help employers understand their duty to ensure that they conduct an investigation appropriate in the circumstances.

Scenario 1

A new employee at a small construction company reports that several of the other workers at work refuse to use the worker’s name, instead calling the worker derogatory names. In addition, they isolate the worker from work activities. The worker approaches the site supervisor to report workplace harassment.

The site supervisor is not involved in the incident. The supervisor promptly interviews the worker, the alleged harassers and the other witnesses and takes detailed notes of what they say. The worker and the alleged harassers receive a written summary of the results of the investigation and any corrective action.

Scenario 2

The manager of a pharmacy location begins to make comments about how attractive the new assistant looks in particular clothing. The assistant feels uncomfortable with these comments and tells a co-worker. The co-worker follows the employer’s program and notifies head office to report the incident. The employer now has a duty to investigate.

The alleged harasser is the manager who is the direct supervisor of the assistant. The manager cannot conduct a fair and impartial investigation because they are involved in the incident as the alleged harasser. A manager from head office who has knowledge of the employer’s workplace harassment program and who is not involved in the incident conducts an investigation appropriate in the circumstances. The worker and the alleged harasser receive a written summary of the results of the investigation and any corrective action.

Scenario 3

A worker at a retail store contacts the company’s human resources department, saying that the worker feels harassed by the supervisor. The worker says that the area supervisor has sent the worker inappropriate e-mails and repeatedly invited the worker out for dinner even after the worker continually declined.

A person from the human resources department conducts an investigation appropriate in the circumstances. The supervisor cannot conduct the investigation because the supervisor is the alleged harasser. The person from the human resources department completes the investigation. The worker and the alleged harasser (supervisor) receive a written summary of the results of the investigation and any corrective action.