A workplace investigation is generally governed by the laws on labour standards, labour relations, and with reference to the laws on human rights. It can be seen as the practical application and the actual recognition of the rights granted by these laws to an employee and to an employer.
Workplace Investigations, generally
Generally, a workplace investigation is an impartial, independent, and standardized process of investigation of a particular accident or incident which occurred during work, or in a work environment, which caused injury – or sometimes death – to an employee, or damages to an employer’s establishment, machineries, or equipment. The goal is to discover the truth on a complaint for its independent determination and for recommendation on workplace improvement after such incident.
Workplace investigations may either be filed before a labour regulating authority or before the employer – when filed at the former, it would be conducted by the labour regulating authority itself or a third party tasked by it; and when filed before the employer, the investigation may be conducted by the company human resource department, its labour committee, or any other similar company body.
This internal workplace investigation conducted by the employer may be in addition to the investigation conducted by the labour regulating authority when the damaging accident or event occurred. Although, such investigation by the employer may only be the basis for its own action as to the effects of the accident and is not binding upon the labour regulating authority.
The system of workplace investigations, and the meaningful results that may come from it, may only be achieved when the investigation’s confidentiality is upheld to a high standard, which includes the protection of the witnesses and the evidence offered. The correctness of workplace investigations by the employer or the labour regulating authority is also hinged on the objectivity of the investigation, and on the fairness and impartiality of the investigation. It’s advised both parties to seek the assistance of an occupational health and safety lawyer to ensure they get the best deal possible.
Learn the steps to do when an employee is injured with this article.
Workplace Investigations in Canada
The conduct of workplace investigation in Canada – either internally conducted by the employer or by the labour regulating authority – is governed by the Canada Labour Code, and its regulations, such as the Canada Occupational Health and Safety Regulations, and the Work Place Harassment and Violence Prevention Regulations.
These laws are on top of the provincial statutes on labour and employment, since the Canada Labour Code and its regulations are only applicable to specific workplaces (i.e., federally regulated entities), while any other workplace (e.g., private employers) are governed by the provincial statutes on labour and employment. This is why it’s important to seek the advice of a lawyer in your province for assistance.
Investigations on Workplace Health and Safety Hazards
The Canada Occupational Health and Safety Regulations (COHSR), whose enabling law is the Canada Labour Code, provides for an internal workplace investigation process regarding workplace health and safety hazards. The COHSR states that employers must develop a workplace investigation procedure for the following situations:
- poor or toxic air quality (Section 2.27);
- high levels of sound pressure (Section 7.3); or
- exposure to a hazardous substance (Sections 10.4 and 10.26.1).
While the COHSR has also provided for the specific procedures on the conduct of the investigation for each hazard, it is common among them that such investigation should be conducted without any delay when a complaint by an employee has been filed, that the investigation report should be kept secured for several years for reference, and such report may be submitted to the necessary federal compliance authority.
Learn more about occupational health and safety laws and how they can protect and empower employees.
Investigations on Workplace Harassment and Violence
The Work Place Harassment and Violence Prevention Regulations (WPHVPR), whose enabling law is still the Canada Labour Code, provided for another internal workplace investigation, which is when there has been an occurrence of harassment and violence in the workplace.
When an “occurrence” (term used by WPHVPR referring to the incidence of harassment or violence) does happen, the employer may proceed with a negotiated resolution (Section 23) or conciliation (Section 24) of the occurrence; however, a full resolution of the occurrence cannot be had until the investigator has provided their report on the occurrence if an investigation has already started.
Additionally, when the occurrence has been resolved either through a negotiated resolution or conciliation before the investigator renders their report, the investigation will have to be discontinued (Section 25 (2)). Otherwise, the submission of the investigation report and its implementation by the employer would only resolve the occurrence (Section 32).
The WPHVPR also provided for the process of selecting an investigator (Section 27) and the investigator’s qualifications (Section 28).
Investigation by the Head of Compliance and Enforcement
The Head of Compliance and Enforcement is also empowered by the Canada Labour Code to conduct investigations in relation to the health and safety, and workplace hazards. The Head may conduct investigations when death has occurred in the workplace or while the employee was working (Section 141 (4)).
Learn the procedures for work refusals under Canada’s laws here.
The Head may also conduct investigations when referred by any unsatisfied party with the result of any internal complaint resolution process or internal investigation (Section 127 (8) and 129 (1)) in relation to an employee’s refusal to work due to a workplace danger (Section 128).
What is the process of a workplace investigation?
Under the above-mentioned laws and its regulations, a workplace investigation is generally conducted through:
- Acknowledging receipt of the complaint from the offended party within 7 days
- Commencing the investigation by the committee or investigator within 45 days
- Regularly updating the parties (offended party, respondent, and employer) on the investigation’s status
- Resolution of the complaint (i.e., completion of the investigation, or the conciliation or negotiated resolution) and its implementation within a year
What are the most common workplace investigations?
There are different types of workplace investigations, depending on the imputed accident or event which caused the injury, and the effects it produced (e.g., physical injuries, loss of life, damage to or loss of property). These may include:
- Company policy violations (misconduct, poor performance)
- Health, safety, and workplace hazard
- Discrimination and harassment (physical, mental, sexual)
- Workplace violence
- Criminal offenses (theft, fraud)
Although the law and its regulations provided for specific instances which must be investigated by the employer, it does not preclude or prevent the employer from investigating other matters which happened within the workplace.
Want to know more about workplace investigations or about Canada’s labour laws? Consult with the best occupational health and safety lawyers in Ontario or choose your province from the drop-down menu.