What are an employer’s obligations to investigate workplace misconduct?
Employers’ obligations to investigate workplace misconduct vary depending on the type of incident, and employees have different options for recourse if those obligations aren’t met.
Under the Occupational Health and Safety Act, employers must investigate all workplace harassment, even if there is no formal or informal complaint. If they fail to do so, employees can file a complaint with the Ministry of Labour, which can require the employer to conduct an investigation.
While the Ontario Human Rights Code doesn’t explicitly state that employers must investigate workplace discrimination, the Human Rights Tribunal of Ontario has ruled that this is implied in the Code’s prohibition on workplace discrimination. An employer’s failure to reasonably investigate can result in a human rights complaint.
When it comes to dismissing an employee for misconduct, neither the Employment Standards Act nor the common law requires an investigation beforehand.
If the employee’s misconduct meets the relevant legal standard for dismissal (the standard is different under the common law and the Employment Standards Act), employers can terminate them without pay, even without an investigation.
However, failing to investigate can be risky — and costly.
For example, if an employer fires someone for theft without proof and it turns out that the employee is innocent, that employee could sue for wrongful dismissal and potentially receive extra damages for bad faith treatment.
Employers who discover potential misconduct should seek legal advice to ensure they understand their obligations. Getting advice before firing someone without pay is essential, as the financial consequences of a mistake can be significant.
Employees should also get legal advice if they believe their employer has failed to meet its obligations, as their legal options will depend on the circumstances.
This article was originally published by The Hamilton Spectator.
