CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
Filion Wakely Thorup Angeletti LLP 333 Bay Street, Suite 2500 Toronto, Ontario M5H 2R2 Canada
Tel: +1 416 408 5514 Fax: +1 416 408 4814 Email: toronto@filionlaw.com Web: filionlaw.com
1. Opening an HR Internal Investigation 1.1 Circumstances An internal HR investigation is typically done when a concern or allegation is raised regarding the work - place which, if true, would: (i) amount to workplace harassment and/or workplace violence; (ii) constitute a violation of human rights legislation (such as racial or gender-based discrimination or sexual harass - ment); (iii) employee misconduct which may result in an employee’s termination of employment for “just cause”; and/or (iv) pose a legal or reputational risk to the organisation. 1.2 Bases In Canada, an employer is generally required to con - duct a workplace investigation when an employee alleges: (i) workplace harassment (including sexual harassment) and/or bullying; (ii) discrimination or har - assment based on any personal characteristic such as gender, race, religion, disability or as otherwise protected at law. This duty to investigate comes from an employer’s obligation to provide a workplace free from harassment and discrimination. In addition to the circumstances that require an inter - nal workplace investigation, employers may also investigate other employee misconduct or problem - atic workplace behaviour, health and safety concerns, or breaches of their workplace policies. 1.3 Communication Channels Federally regulated employers are required to have a workplace harassment and violence prevention policy that sets out the manner in which a party may notify
the employer of an occurrence of harassment or vio - lence in the workplace. While provincial legislation governing workplace harassment varies somewhat, most provincially regulated employers must also have a written policy with respect to workplace harassment and workplace violence, which must include meas - ures and procedures for reporting workplace violence Investigator selection is a crucial component of any investigation. A workplace investigator (whether inter - nal or external) should be neutral (ie, fair and impar - tial); skilled in conducting workplace investigations; and available. Internal HR investigations are often conducted by human resources or labour relations professionals, in-house counsel, or internal workplace investigators. An organisation often sets out in its workplace policies that an investigation will be done internally or, depending on the circumstances, may decide to retain an external workplace investigator. A decision as to whether to proceed with an internal or external investigator largely depends on the particu - lar circumstances. Some circumstances in which an organisation may decide to proceed with an external investigator are set out below: • if the allegations are particularly serious or com - plex; • if the allegations involve senior employees within the organisation; • if the allegations involve multiple parties; • if the organisation wants to ensure that the neutral - ity of the investigator cannot be challenged; and/or harassment. 1.4 Responsibility
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