Administrative investigations

When is an investigation needed?

Employers have a responsibility to take allegations or complaints of harassment and/or violence in the workplace seriously. This does not always mean an investigation is required. The steps an employer must take to resolve complaints of harassment and/or violence in the workplace will be dependent on whether the workplace falls under federal (Canada Labour Code) or provincial (Independent Provincial acts and codes) regulations.

Workplaces may be able to resolve employee conflicts internally through mediation, or informal conflict resolution. Sometimes what was believed to be harassment and/or violence by one party may not meet all the criteria of harassment or violence and an employer can address the employee’s concerns internally.

For an investigation to be warranted, the complaint must appear, at first glance (prima faci), to meet the criteria for harassment and/or violence. If an employer, or the person responsible for assessing the complaint, deems that if an investigation were to be conducted what is being alleged would not meet the criteria for harassment and/or violence then the investigative route is likely not going to be helpful in resolving the workplace issue.

If it is deemed an investigation is not necessary an employer may want to consider a workplace assessment as an alternative route that would provide insight into why a complaint was made, or if there is workplace conflict or risks present.

Different types of investigations we complete:

 

Harassment and violence in the workplace

The Canada Labour Code defines harassment and violence as:

“any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment;” 

(https://laws-lois.justice.gc.ca/eng/acts/l-2/page-14.html#h-341197)

 

Examples of commonly experienced workplace harassment and violence are:

  • Bullying (by peers or a supervisor)
  • Abuse or Misuse of power
  • Sexual Harassment/Violence
  • Threats to employment and/or reputation
  • Discrimination and bias against employees (see Discrimination for more examples)
  • Yelling and swearing directed at employees
  • For more examples see: ca Examples of harassment and violence in a workplace

There are 6 criteria that need to be met for harassment to be founded:

  • The conduct must be deemed as having been inappropriate or improper for the workplace;
  • The conduct was directed at the person making the complaint (this does not apply to allegations of discrimination based on a protected ground; witnesses are permitted to make complaints);
  • The person to whom the conduct was directed experienced harm or took offence:
  • The person who caused harm or offence ought to have reasonably known their behaviour would have a negative impact;
  • The conduct is a pattern of behaviour or a single severe occurrence; and
  • The occurrence occurred within a workplace or similar environment (this may be at a training or conference, over text message or e-mail, on a virtual work meeting, at a work function, or in the physical workplace).
Leading experts in administrative investigations

Discrimination

Discrimination in a workplace can resemble harassment or violence, however discrimination can also be experienced and show up in discriminatory policies, structures, and systems and does not have to be targeted at an individual to cause harm or offence.

The Canadian Human Rights Act states the prohibited grounds for discrimination are:

  • Race;
  • National or ethnic origin;
  • Colour;
  • Religion;
  • Age;
  • Sex;
  • Sexual orientation;
  • Gender identity or expression;
  • Marital status;
  • Family status;
  • Genetic characteristics;
  • Disability; and
  • Conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

In order for a claim of discrimination to be founded, the test for discrimination must be considered:

  • The person making the complaint has a characteristic protected under the Canadian Human Rights Act;
  • The person making the complaint experienced an adverse impact with respect to an area protected by the Code; and
  • Was the protected characteristic a factor in the adverse impact.

(Test for Discrimination outlined in the Moore v. BC (Education), 2012 SCC 61 decision)

 

Disclosures of Wrongdoing and Misconduct

HENRI Investigations is familiar and experienced with applying the Public Servant Declaration Protection Act (PSDPA) to investigations into allegations of wrongdoing.

The classification of wrongdoing or misconduct within a workplace will vary depending on the employment agreements and code of conduct or values and ethics an employer has in place. For federal employees the legislation outlines the following as examples of wrongdoing:

(a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act;

(b) a misuse of public funds or a public asset;

(c) a gross mismanagement in the public sector;

(d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

(e) a serious breach of a code of conduct established under section 5 or 6; and

(f) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

 

Misconduct may be any conduct that goes against a workplace’s values and ethics, or an employment contract. Examples of misconduct may also include:

  • Time theft
  • Substance use during working hours
  • Inappropriate relationships with subordinates
  • Failure to report a conflict of interest (or potential conflict of interest)
  • Inappropriate use of social media
  • Abuse of a customer, client, or service user
  • Accepting gifts or bribes
  • Failure to report incidents
  • Failure to follow policies and procedures

Wrongdoing and misconduct investigations may be initiated when an employer receives information from numerous sources, an anonymous source, or becomes aware of a breach of conduct, however there isn’t an identified Complainant or an individual against whom the conduct was directed.