CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
6.7 Other Communications In some jurisdictions, employers that have undertaken investigations into allegations of harassment and vio - lence may also be required to advise workplace com - mittees responsible for health and safety on the con - clusion and provide additional information in respect of the incident(s) and the outcome of the investigation. The nature and extent of the information that must be provided varies depending on the provincial legisla - tion. For federally regulated employers, the investiga - tor must provide an anonymised copy of the report containing their conclusions and recommendations to the workplace health and safety committee. 6.8 Disciplinary Measures If allegations are substantiated, an employer can take various disciplinary measures depending on the severity of the misconduct, ranging from verbal or written warnings, mandatory training, suspension (with or without pay), demotion, or reassignment of duties, to termination (with or without cause). For severe misconduct such as fraud, sexual harassment, or violence, termination for common law just cause (or wilful misconduct) may be appropriate, while termina - tion without cause may be used if the threshold for common law just cause is not met or the misconduct has been condoned by the employer. In deciding the appropriate measure, the employer should consider their own policies and what, if any, requirements are imposed by those policies when deciding on appropri - ate disciplinary measures. 6.9 Other Measures An employer may also wish to adopt other measures that are non-disciplinary following the outcome of an investigation. Measures should focus on enhancing workplace culture and mitigate the risk of future com - plaints or investigations. For example, workplace resolution mechanisms may be appropriate where there is ongoing conflict or inter - personal issues among a group of workers, regardless of whether the allegations are substantiated follow - ing an investigation. In other situations, employees and managers may benefit from additional coaching on a particular issue (for example, cultural sensitivity training, conflict-resolution training or training on per - formance management) following the outcome of an
investigation even if the allegations are unsubstanti - ated. Employers may also adjust workflows or reas - sign roles to minimise interactions between individuals involved, introduce flexible work arrangements such as remote work, or enhance workplace monitoring and oversight. Additionally, offering access to employ - ee assistance programmes or bringing in additional counselling and support may be advisable as part of a workplace restoration process.
7. Data Protection 7.1 Collecting Personal Data
The investigator is primarily responsible for collect - ing data for the purpose of the investigation. Where appropriate, the investigator may wish to access, col - lect and use personal data from an employer for the purpose of an internal investigation. Various workplace privacy laws may apply to the collection of personal data belonging to employees, depending on whether the employer is in the private sector or public sector, federally or provincially regu - lated, unionised or non-unionised. Canadian law generally permits the collection of per - sonal data if the collection of such data is reasonable. To demonstrate that collection is reasonable, at the very least, an employer should notify the employee of: the fact that it has undertaken employee monitoring or is collecting data, the purpose in collecting the data and the manner in which the data is collected. Many employers have policies in respect of the collection of personal data and use of such data. In some cases, it may not be feasible to advise an employee that their personal data is being collected if it is being done for the specific purpose of the investi - gation. Some provincial and federal privacy legislation contains explicit exceptions to notice requirements where monitoring is reasonable for the purpose of investigating a breach of an express or implied term of an employment agreement or a violation of a federal or provincial law.
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