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An Employer’s Guide to Internal Investigations in Ontario

By: George Waggott, founder, and Roberto Fonseca-Velazquez, summer law student,

George Waggott Law



Introduction 

Internal workplace investigations can be a useful and often necessary process for when an employee makes an informal or formal complaint. The complaint may be related to violations of workplace rules, job-related misconduct or workplace human rights violations including discrimination and harassment. Investigations into human rights complaints are governed by the Occupational Health and Safety Act (“OHSA”). Under the OHSA an employer is required to investigate allegations of workplace harassment and violence. The Ontario Human Rights Code (the “Code”) does not require that an employer investigate an alleged violation of the Code, however the Human Rights Tribunal of Ontario has awarded damages for failing to or failing to adequately investigate a complaint of harassment or discrimination.


Why are internal investigations conducted?

  • To provide employees with a healthy working environment by identifying and eliminating undesirable work practices, such as bullying and harassment;

  • To increase a company’s fiscal efficiency by finding and eliminating fraud;

  • To ensure compliance with local law; and

  • To respond to whistleblowing.


What are the main areas where internal investigations can be recommended?

  • Investigations in cases of harassment, which are very common;

  • Investigations conducted following corruption or failure to comply with financial, antitrust, or banking regulations;

  • Investigations following environmental alerts.

 

What is an internal investigation?

Once an employee lodges a complaint, an internal Human Resources (“HR”) professional or a third-party investigator will be tasked with the investigation. The investigator will conduct the internal investigation through interviews, review of policies and other measures in order to discover wrongdoing or establish compliance with legislation and human rights expectations.

 

The main features of an internal investigation

The specific features of an internal investigation will be based on the complexity of the situation including the nature of the initial complaint, the severity of the alleged misconduct and the number of parties involved. Regardless of the situation, the three main features below should be determined prior to launching the rest of the internal investigation.

 

Determine a timeline:

  • An example timeline could include:

  • Internal report of misconduct

  • Establishing a timeline of events

  • Confirmation of receipt of alert (to the reporter)

  • Interviews

  • Internal investigation

  • Review of documents

  • Investigation report

  • Notification to reporter of the results

  • Follow-up actions

  • Disciplinary actions

  • Contractual actions

  • Disclosure to authorities

  • Processing of investigation materials


Define the scope of the impugned behaviour:

  • Attributable entirely to an individual

  • Attributable to a business unit or department

  • Attributable to a particular location

  • The whole company

  • Impugned behaviour occurs within one country

  • Impugned behaviour implicates operations of the company across multiple countries


Choose the investigative team

  • Ensure no one is involved with the complaint

  • Be impartial

  • Demonstrates qualities like ability to interview, analyze, organize, write, actively listen


Who should be interviewed?

To verify and process an internal report effectively, the company must proceed in a consistent manner. It is often appropriate to first hear the person who reported a concern and ask them for clarification or further information. Then, depending on the situation, the person or persons accused of being involved in the misconduct or wrongdoing should be interviewed. Following this, the company may identify other employees that may be able to provide additional insight. This could include victims of the same acts, employees who may have witnessed the acts or employees who may have specific knowledge of the facts, such as accountants.

 

After the interview

The person in charge of the internal investigation should write a report based on the detailed notes taken during the interview. In the absence of legal rules governing interviews, it is often recommended that the report is proofread and countersigned by the person being interviewed.


In any case, the interview report should not be physically handed over to the employee to reduce the risk of leaks. Identification of the person reporting the concern is indeed crucial: most judges cannot base their decisions solely or decisively on anonymous witness statements. The signing of a formal non-disclosure agreement for all interviewees, setting out in particular the risk of potential criminal liability for breach of confidentiality, may sometimes be recommended.

 

Record or disclose the investigation

When the investigation is completed and the company has been able to confirm the accuracy of the facts investigated, the question of what to do with this information arises. Whether to make a voluntary disclosure of wrongdoing nonetheless presents a tactical decision for companies. Disclosure may mitigate fines and penalties or even avoid liability entirely. However, the downsides of disclosure include increased costs, the possibility of a follow-on government investigation and exposure to penalties.

 

Ten-Point Checklist

The below list is a ten-point checklist that can be used for any internal investigation regardless of the nature of the initial complaint or the severity of the allegation.

  1. Ensure the credibility of the allegations and the source before starting an internal investigation;

  2. Understand the nature and scope of the internal investigation;

  3. Appoint investigators according to the nature of the internal investigation;

  4. Manage communication and organization and take protective measures, if necessary;

  5. Collect and review documents;

  6. Interview the employees involved or other witnesses and take interview notes;

  7. Decide and communicate (or not) on corrective measures and sanctions;

  8. Draft the final report;

  9. Consider any useful action to be taken as a result of the internal investigations (protecting the victim, witnesses and whistleblower; breaching contracts; taking legal action; sanctioning an employee; or disclosure to public authorities);

  10. Archive the file or ensure its lawful preservation.

 


For more information about George Waggott Law, please see: www.georgewaggott.com, or contact: george@georgewaggott.com

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