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Workplace Harassment: Investigation by the Employer

Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. For further information please see full disclaimer.

All workers are entitled to a safe and healthy workplace. This fact sheet is designed to help employers understand some of their duties with respect to investigating complaints and incidents of workplace harassment under the Occupational Health and Safety Act (OHSA). It is not legal advice. It is not intended to replace the OHSA or the regulations. It does not cover other legal obligations that may exist such as those under Canada’s Criminal Code or Ontario’s Human Rights Code. If you need help in determining what constitutes compliance, you should obtain legal advice.

Appropriate investigation

Under section 32.0.7 of the Occupational Health and Safety Act (OHSA), an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents or complaints of workplace harassment.

A workplace harassment investigation appropriate in the circumstances should:

  • Be undertaken promptly. It would be reasonable to complete the investigation as soon as possible within 90 days or less unless there are compelling reasons why a longer investigation is needed (e.g. there are multiple witnesses, a key witness is unavailable due to illness, etc.).
  • Be objective. The person conducting the investigation should not be involved in the incident and should not be under the direct control of the alleged harasser.
  • Maintain confidentiality. Information about the incident or complaint, including information about the people involved, should not be disclosed unless the disclosure is necessary to protect workers or is needed to investigate the incident or complaint, take corrective action and/or is otherwise required by law.
  • Be thorough. Reasonable efforts should be made to interview the worker who allegedly was harassed, the alleged harasser(s) and any witnesses, as appropriate in the circumstances. When interviewing, ask specific questions about the incident or complaint. For example, what did the person see, hear or experience. Take detailed interview notes, and make sure that relevant documents from the worker, alleged harasser, witnesses and the employer are collected and reviewed.

An investigation template to help employers can be found in the Code of Practice to Address Workplace Harassment. Employers may also want to refer to Part III (Employer Duties) of the Code of Practice for more information.

Person conducting the investigation

When there is an incident or complaint of workplace harassment, the employer must ensure that an investigation appropriate in the circumstances is conducted. The person conducting the investigation can be internal to the workplace (e.g., supervisor, senior manager, human resources staff), work at another employer location (e.g. a corporate office) or may be someone external to the organization (such as a licensed private investigator, human resource professional, lawyer, or someone who holds some other professional designation).

The person conducting the investigation should know about the workplace harassment and reprisal provisions under the OHSA and should have received information and instruction on the employer’s workplace harassment policy and program.

There is no requirement under the OHSA for the person who conducts the workplace harassment investigation to have a licence. However, a person whose work primarily consists of conducting investigations into the character or actions of a person may be required to have a licence under the Private Security and Investigative Services Act, 2005. For further information visit the Ministry of Community Safety and Correctional Services website.

Investigation scenarios

Below are some investigation scenarios to help employers understand their duty to ensure an investigation appropriate in the circumstances is conducted.

Scenario 1

A new employee at a large construction company reports that several of the other workers at work refuse to use the worker’s name, instead calling the worker derogatory names. In addition, they isolate the worker from work activities. The worker approaches the site supervisor to report workplace harassment.

The site supervisor is not involved in the incident. The supervisor promptly interviews the worker, the alleged harassers and the other witnesses and takes detailed notes of what they say. A written summary of the results of the investigation and any corrective action is given to the worker and the alleged harassers.

Scenario 2

The manager of a pharmacy location begins to make comments about how attractive the new assistant looks in particular clothing. The assistant feels uncomfortable with these comments and tells a co-worker. The co-worker follows the employer’s program and notifies head office to report the incident. The employer now has a duty to investigate.

The alleged harasser is the manager who is the direct supervisor of the assistant. The manager cannot conduct a fair and impartial investigation as the manager supervises the assistant. A manager from head office who has knowledge of the employer’s workplace harassment program conducts an investigation appropriate in the circumstances. A written summary of the results of the investigation and any corrective action is given to the worker and the alleged harasser.

Scenario 3

A worker at a retail store contacts the company’s human resources department, stating that the worker feels harassed by the supervisor. The worker says that the area supervisor has sent the worker inappropriate e-mails and repeatedly invited the worker out for dinner even after the worker continually declined.

A person from the human resources department conducts an investigation appropriate in the circumstances. The supervisor cannot conduct the investigation because the supervisor is the alleged harasser. The person from the human resources department completes the investigation. A written summary of the results of the investigation and any corrective action is given as soon as possible to the worker and the alleged harasser (supervisor).

Other resources

Toll-free number

Ontario provides a toll free province-wide telephone number to report unsafe work practices and workplace health and safety incidents. Call the Ministry of Labour Health & Safety Contact Centre at 1-877-202-0008.

  • Call any time to report critical injuries, fatalities or work refusals.
  • Call 8:30 a.m. – 5:00 p.m., Monday – Friday, for general inquiries about workplace health and safety.
  • In an emergency, always call 911 immediately.

Disclaimer: This web resource has been prepared to assist the workplace parties in understanding some of their obligations under the Occupational Health and Safety Act (OHSA) and the regulations. It is not intended to replace the OHSA or the regulations and reference should always be made to the official version of the legislation.

It is the responsibility of the workplace parties to ensure compliance with the legislation. This web resource does not constitute legal advice. If you require assistance with respect to the interpretation of the legislation and its potential application in specific circumstances, please contact your legal counsel.

While this web resource will also be available to Ministry of Labour inspectors, they will apply and enforce the OHSA and its regulations based on the facts as they may find them in the workplace. This web resource does not affect their enforcement discretion in any way.