Procedural fairness is the cornerstone of an effective workplace investigation. When a workplace investigation takes place, employers are responsible for ensuring that the investigation is carried out thoroughly and in accordance with the principles of procedural fairness.
While no investigative process is ever perfect, employers are required to meet certain obligations and standards when conducting workplace investigations. These obligations are designed to ensure that the investigation is conducted fairly, safeguarding the rights of all parties involved. Failure to uphold procedural fairness can diminish the legitimacy of the investigation, leading to serious liability and legal repercussions for an employer.
The Fundamental Principles of Procedural Fairness
The specific requirements of procedural fairness differ according to the nature of the investigation, however, there are some core principles which have been developed at common law that should be kept in mind when conducting a workplace investigation, including:
- Legislative and policy requirements: The employer must adhere to the procedures set out in applicable legislation and organizational policies. At the outset, a thorough review of applicable workplace policies should be undertaken to establish a clear mandate defining both the scope of the investigation and the process. Depending on the nature of the allegations, certain legislation may be triggered. For instance, in Ontario, employers are required to investigate allegations of workplace violence and harassment under the Occupational Health and Safety Act (OHSA) (see: Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209), 2020 SKQB 96, para. 37).
- Duty of confidentiality: The employer should try to maintain confidentiality throughout the investigation process in order to preserve the integrity of the investigation. This includes limiting the sharing of information to only those who need to know and ensuring that all parties understand their confidentiality obligations from the outset of the investigation.
- Requirement of notice: The Complainant and the Respondent must be notified that an investigation is taking place.
- Summary of allegations: The Respondent should receive a written summary of the allegations against them before their interview with the investigator. This summary should provide the Respondent with sufficient particulars in order to be able to prepare and respond effectively (see: Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209), 2020 SKQB 96, para. 37; and, Chapell v. Canadian Pacific Railway Company, 2010 ABQB 441 (CanLII).
- Requirement of objectivity: The investigator appointed by the employer must act impartially and without bias. There should be no conflicts of interest concerning any of the parties involved. The investigator is required to consider the information provided by all parties genuinely and objectively when forming their findings and conclusions (see: Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209), 2020 SKQB 96, para. 37; Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 (CanLII), para. 166); and, Shoan v. Canada (Attorney General), 2016 FC 1003 (CanLII).
- Requirement of being heard: The parties must be given a fair opportunity to provide their position to the investigator, and to respond to information provided by the other side, and by witnesses. This includes providing the Complainant with the opportunity to know and respond to the positions advanced by the Respondent and any witnesses which are contrary to their testimony (see: Marentette v Canada (Attorney General), 2024 FC 676 (CanLII), paras. 38-39).
- Timely resolution: The investigation should be conducted in a timely manner, with a view to restoring harmony in the workplace as quickly as possible (see: Marentette v Canada (Attorney General), 2024 FC 676 (CanLII).
- Right to be informed of the results: Depending on the applicable legislation, employers are generally required to advise the Complainant and the Respondent of the results of the investigation and any corrective measures taken in writing and with sufficient detail (for some of the latest decisions regarding reporting requirements under the OHSA see: Toronto Metropolitan University v Toronto Metropolitan Faculty Association, 2023 CanLII 93288 (ON LA); and, Shannon Horner v Stelco Inc. Lake Erie, 2024 CanLII 16448 (ON LRB).
Failing to Uphold Procedural Fairness
While these requirements provide the foundation for procedural fairness, applying them in practice is not always straightforward. Each investigation is unique, and employers must exercise careful judgment when selecting investigators and conducting the investigation to ensure procedural fairness for all parties.
If the employer fails to conduct a fair and thorough investigation, there may be grounds for legal action that are separate and apart from the incidents underlying the original complaint. Courts have awarded substantial damages in cases where employers failed to uphold procedural fairness resulting in flawed investigations which in turn can lead to flawed conclusions.
If you need guidance navigating the workplace investigation process, the Workplace Investigations team at Soloway Wright LLP can assist in conducting fair, timely, and legally defensible investigations.
About the Author
Mareike van Nieuwkoop is an Associate in the Labour, Employment & Public Law and Workplace Investigations Groups at Soloway Wright LLP. She is frequently retained as an independent third-party investigator to conduct workplace investigations and deliver findings even in the thorniest cases. Leveraging her extensive background in human rights, she regularly provides advice to Complainants, Respondents and employers on how to effectively navigate and manage the investigation process.
DISCLAIMER: This article is for general information purposes only and is not (and should not be construed as) legal advice.
