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[Workplace Investigations: Index to Contents]
Workplace Investigations
Legal Duties, Fair Process, Employee Rights & Consequences of a Flawed Investigation
This chapter examines the legal obligations governing workplace investigations,
the rules of procedural fairness, employee safeguards and the consequences of a
defective investigative process, including damages, constructive dismissal,
defamation and challenges to findings of just cause.
Statutory Duty to Investigate
Human rights, occupational health and safety and federal statutory obligations
requiring employers to investigate workplace complaints.
- Introduction
- Statutory Duty
- Human Rights: Failure to Investigate — Independently Actionable?
- Other Jurisdictions
- Canada Labour Code: Duty to Investigate
- Dismissal Motions
- Applicant Accepts Investigative Report
- Failure to Co-operate: Costs Liability
- Investigation as a Defence to Employer Liability: Sexual Harassment
- Occupational Health & Safety: Duty to Investigate
- Duty to Investigate: No Complaint
- External Regulators
Civil Consequences of the Investigation
The common-law consequences of failing to undertake, or improperly
conducting, a workplace investigation.
Leading Defective-Investigation Cases
Important Canadian decisions illustrating the consequences of bias, procedural
unfairness, incomplete fact-finding and failures to test competing evidence.
Tort, Defamation & Good-Faith Liability
Serious investigative failures may support claims extending beyond wrongful dismissal,
including malicious prosecution and defamation.
Rules in Conducting the Investigation
The central principles of procedural fairness: notice of the allegations,
a meaningful opportunity to respond, neutral fact-finding, preservation of evidence
and a fair assessment of competing accounts.
Suspension Pending the Investigation
The employer’s right to remove an employee from active duties while allegations
are being investigated and the consequences of an improper suspension.
Fairness Duty of the Investigator
The investigator’s obligation to approach the mandate impartially and provide
a process capable of producing reliable findings.
Employee Protected Rights
Privacy, representation, silence and other employee safeguards that may arise
during an internal workplace investigation.
Legal Counsel, Investigator Roles & Privilege
Issues arising when legal counsel participates in or conducts the investigation,
including the employee’s access to independent advice.
Investigation Failures & Damage Awards
A research chart comparing factual findings and damages arising from unfair
or defective workplace investigations.
👤 About the Author:
David Harris — Canadian Employment Law