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How are workplace investigations handled in your workplace?

Increased media scrutiny around bullying, harassment, and other inappropriate conduct in the workplace has brought greater focus and attention on BC employers' Respectful Workplace policies and their internal procedures for dealing with employee complaints. WorkSafeBC requires all employers to not only take reasonable steps to prevent, or otherwise minimize workplace bullying and harassment, but to also develop and implement written procedures for workers to report incidents or complaints of workplace harassment and bullying. These procedures must include how, when, and to whom an employee should report incidents or complaints, including procedures in the event that the employee's supervisor or manager is the alleged bully and harasser. 

Employers should ensure that their workplace policies include a clear process that is consistently applied in the event of an employee complaint. Every employer's complaint procedures should include information about how and when an investigation into a complaint will be conducted, and by whom the investigation will be conducted. If an employer's policy allows for complaint investigations to be conducted internally, for example by the human resources department, employers are encouraged to ensure they have properly trained personnel to handle workplace investigations, particularly given that workplace investigations can involve highly sensitive and traumatic events, such as sexual harassment. Regardless of who will be conducting the investigation, a high degree of professionalism, sensitivity, fairness, and objectivity must be exercised in all cases. It is in an organization's best interests to treat workplace complaints and investigations seriously, and to carefully document all steps taken by the company to resolve employee complaints.

In some circumstances, a company may wish to retain an external third-party professional to conduct the workplace investigation, such as a lawyer. Circumstances that may benefit from an investigation being done by an external and independent investigator include situations where particularly serious allegations have been made, such as sexual assault allegations, or where the complaint has been made against the person that the workplace policy designates as the investigator. Workplace investigations involve the investigator interviewing the complainant(s), the respondent(s) and any potential witnesses, most of whom, if not all, will be employees, contractors, directors, or officers of the organization. As a result, retaining an external investigator may help to avoid actual or perceived conflicts of interest, or the accidental disclosure of sensitive or confidential personal information to others within the organization.

Comprehensive workplace procedures to handle reports of misconduct in the workplace that are consistently followed provide employees with a greater sense of protection and confidence to come forward if they find themselves subject to inappropriate workplace behaviour. Employers should also note that a failure to properly conduct a fair and impartial workplace investigation could result in additional damages being awarded against the employer should the complainant choose to pursue any potential claims in a court or administrative proceeding.

Whether you are an employer that is seeking advice in connection with how to properly conduct a fair and internal investigation, or are looking to retain an external, third-party investigator to conduct your workplace investigation, it is a good idea to consult with an experienced employment lawyer upon your receipt of a serious workplace complaint. Similarly, if you are an employee who wishes to make a complaint, or an employee that has been named in a workplace complaint, an experienced workplace lawyer can provide you with advice and support in connection with the complaint and investigation process. 

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