According to the Ontario Health and Safety Act (“OHSA“), employers have a duty to maintain a healthy and safe workplace for their employees.
As part of this duty, employers must ensure that proper and appropriate protocols are followed when a complaint is made within the workplace, which may include conducting a workplace investigation.
Specifically, an employee has the right to file a complaint if they have workplace concerns related, but not limited to:
- The health and/or safety of the work environment;
- Mistreatment, discrimination, bullying, and/or harassment in the workplace; and/or
- General workplace concerns related to their position.
Failure of an employer to properly conduct an investigation may give rise to various consequences, including in relation to damages awarded to the employee.
WHEN IS A WORKPLACE INVESTIGATION REQUIRED?
Under the OHSA, employers are required to take reasonable and appropriate steps in the circumstances to investigate any concerns raised by an employee. Accordingly, each complaint should be assessed on a case-by-case basis to determine whether or not a formal investigation should be undertaken.
A formal investigation may be necessary with situations where the complaint is in relation to:
- A human right(s) concern (i.e., discrimination and or harassment);
- A toxic work environment;
- A health and safety concern(s); and/or
- A general workplace concern(s).
WHAT IF I AM NOT COMFORTABLE FILING A COMPLAINT WITH MY EMPLOYER?
If you do not feel comfortable filing a complaint a formal complaint and/or speaking to your employer, supervisor, or manager about your concerns, you may file your complaint with the Ontario Ministry of Labour.
In raising your concerns, your employer is prevented from retaliating against you, or imposing negative consequences, as doing so may constitute a reprisal for asserting your rights under the OHSA. Where you believe your employer has retaliated in response to your complaint, including by imposing a punishment or terminating your employment, we recommend contacting an experienced employment lawyer to discuss the legal remedies available to you.
You may also file a complaint with the Ministry of Labour if you do not feel confident that your concerns will be and/or have been handled appropriately by your employer. The Ministry of Labour may send an investigator to your workplace, to speak to you, a colleague, or your employer in relation to your concerns. The investigator’s role is limited to observing whether your employer has complied with the law relating to conducting a workplace investigation. Specifically, the investigator will determine whether your employer has sufficiently and appropriately dealt with the workplace concern.
If it is proven the employer has inadequately addressed the complaint, they may instruct your employer to:
- Develop and implement a workplace policy in relation to workplace complaints and investigations;
- Ensure employees have access to the policy by posting the policy they have in a common space, and/or by sending the policy electronically to all employees; and/or
- Update the policy, as required.
HOW CAN I DETERMINE IF MY EMPLOYER HAS CONDUCTED A REASONABLE INVESTIGATION?
Generally, to complete a fair and impartial investigation, your employer should be carrying out the following steps:
- Informing the parties involved that an investigation will be conducted;
- Interviewing the parties, including providing the parties to provide their account and to make a response;
- Requesting the names of relevant witnesses from the parties and conducting interviews with witnesses as required;
- Recording detailed notes and collecting relevant documentation from the parties;
- Preparing a written report that outlines the following:
- The steps were taken during the investigation
- The complaint;
- The allegations;
- The response from the accused;
- The evidence gathered; and
- The outcome of the investigation.
- Informing the parties of the results of the investigation, in writing, and any action to be taken by the employer, within 10 days of the completion of the investigation.
CONTACT SULTAN LAWYERS IN TORONTO FOR ADVICE FOR EMPLOYEES
If you believe your employer has not fulfilled their obligations by completing a fair and reasonable investigation or has mishandled a complaint in the workplace, contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to email@example.com.
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