WORKPLACE INVESTIGATION
•Issue 34 August 2016
On August 12th, the Ministry of Labour released its eagerlyawaited “Code of Practice to Address Workplace Harassment
under Ontario’s Occupational Health and Safety Act
[OHSA]” (“the Code of Practice”). The Code of Practice
provides employers with guidance on how to implement
the new OHSA provisions on workplace harassment set out
under Bill 132 which comes into effect for employers on
September 8, 2016.
Conducting
Sexual
Harassment
and Violence
Investigations
September 20 &
21 in Toronto &
December 6 & 7
in Vancouver
Ministry of Labour publishes
its Code of Practice under
Bill 132 – Some Questions
Answered, Some Not
Overview
The Code of Practice is divided into four “Parts”. Each
addresses one of the new workplace harassment-related
OHSA provisions. Each Part includes a set of “practices”
that must be implemented to demonstrate compliance with
the Part. The Code of Practice also includes several useful
resources (e.g. sample workplace harassment policy and
program, investigation template) as appendices.
The preface makes it clear that implementation of the Code
of Practice is not the only route to compliance with the
workplace harassment sections of the OHSA, so those who
want to fashion their own workplace harassment policies
and programs are welcome to do so. That being said, we
expect that the Ministry of Labour’s health and safety
inspectors are likely to use the practices as the basis for their
determinations and so adherence with the Code of Practice
is probably the safest route to establishing (and proving)
compliance.
e: [email protected]
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
With the introduction
of Bill 132 in Ontario
and Bill 23 in British
Columbia, knowing
how to overcome
the challenges that
sexual harassment and
violence investigations
present to conduct
thorough and fair
investigations has
become even more
important. Join us for
an intensive review of
the dos and don’ts.
Visit
rtworkplacetraining.
com to learn more or to
register.
This alert is prepared as a service for our clients and other
persons dealing with employment issues. It is not intended
to be a complete statement of the law or an opinion on any
subject. Although we endeavour to ensure its accuracy, no
one should act upon it without a thorough examination of
the law after the facts of a specific situation are considered,
and without seekeing the advice of legal cousel. No part of
this pubilication may be reproduced without prior written
permission of Rubin Thomlinson LLP. This has been sent
to you courtesy of Rubin Thomlinson LLP.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Workplace Investigation Alert
Ministry of Labour publishes its Code of Practice under Bill 132 –
Some Questions Answered, Some Not
The practices set out the information that should be included
in the workplace harassment policy and program and provide
recommendations on how to convey this information to
employees. For the purposes of this newsletter, however,
we will focus primarily on Part 3 of the Code of Practice
which, among other things, provides employers with insight
into the Ministry of Labour’s expectations with respect to
investigations.
Duty to Investigate
Part 3 of the Code of Practice deals with section 32.07(1)(a)
of OHSA, which states:
1. To protect a worker from workplace harassment, an
employer shall ensure that,
a) an investigation is conducted into incidents and
complaints of workplace harassment that is appropriate
in the circumstances
There are two elements of this requirement that have brought
about considerable head-scratching and speculation in the
employment law community:
• What is meant by “incidents”?
• What constitutes an investigation that is “appropriate in
the circumstances”?
We were eager to see if the Code of Practice would shine
any light on these elements. Our conclusion? It does so in a
limited way, but there are still many questions regarding how
these new provisions will work.
What is meant by “incidents”?
When Bill 132 was released, the inclusion of the term
“incidents” in section 32.07(1)(a) was noteworthy to
employment lawyers, as it expanded the scope of an
e: [email protected]
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
Are you ready for Bill
132?
Complimentary webcast
September 8 12 noon
In Ontario, Bill 132, the
Sexual Violence and
Harassment Action Plan
Act, comes into effect on
September 8 for most
employers.
Join Janice Rubin and
Christine Thomlinson for
an interactive, hour-long
webcast where they will
discuss how you can ensure
that your organization is
compliant with the new
legislation.
Visit rubinthomlinson.com to
register.
Conducting
Workplace
Assessments
December 8 in
Vancouver
Studies show that only
a fraction of workplace
issues, including workplace
harassment, are ever reported
to the employer.
This session tackles the
problem head on. We
will discuss how to craft
a proactive assessment
process that will uncover and
analyze the workplace culture
through the use of surveys,
focus groups and in-depth
interviews.
Visit rtworkplacetraining.com
to register.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Workplace Investigation Alert
Ministry of Labour publishes its Code of Practice under Bill 132 –
Some Questions Answered, Some Not
employer’s duty to respond to allegations of workplace
harassment beyond those events that come to their attention
by way of formal complaint. This expansion of the duty
to investigate is confirmed in the Code of Practice which
indicates that the duty to investigate will be triggered by one
of two events:
1. The employer becomes aware of an incident of workplace
harassment through a worker; or
2. A written or verbal complaint alleging workplace
harassment is made to the employer.
While the articulation of the “triggering events” provides
some clarity with respect to the scope of an employer’s
responsibility, it does not provide employers with any
insight on what types of events or situations will qualify as
“incidents”. The Code of Practice leaves employers guessing:
Could an “incident” be allegations of harassment raised in
an exit interview? Could the results of an employee survey
that indicates that a high percentage of a work group feel
psychologically unsafe qualify as an “incident”? What
about a situation where harassing conduct is revealed
through the grievance arbitration process or posttermination?
Without more guidance on the term “incident” in the Code
of Practice, we will have to look to the case law to help us
to interpret section 37.02(1)(a) and to better understand
the employer’s duty to investigate. Employers may want to
consider obtaining legal advice if they encounter a situation
and are unsure of whether it triggers the duty to investigate.
What constitutes an investigation
that is “appropriate in the
circumstances”?
Cross-Canada
Workplace
Investigation
Training
Join us in Calgary
and Toronto this fall
for Basic Workplace
Investigation Techniques
and the Report Writing
Workshop and learn how
to address inappropriate
workplace behaviour
before it becomes a legal
issue.
• October 4 - 6, 2016 in
Toronto
• October 25 - 27, 2016
in Calgary
• December 13 - 15,
2016 in Toronto
Visit rtworkplacetraining.
com to learn more or to
register.
Interested in bringing
a customized, in-house
version of this training
into your workplace? Call
(416) 847-1814 for more
information.
Another interesting element of section 37.02(1)(a) of OHSA
was the addition of the requirement that investigations
e: [email protected]
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Workplace Investigation Alert
Ministry of Labour publishes its Code of Practice under Bill 132 –
Some Questions Answered, Some Not
carried out by employers be “appropriate in the
circumstances”. This caveat introduced an element of
subjectivity and context into the duty to investigate which we
had hoped would be fleshed out in the Code of Practice.
The Code of Practice does not define “appropriate in
the circumstances” explicitly but sets out some of the
components of an investigation that inspectors might be
looking for:
• Objectivity: The person carrying out the investigation
must not be the alleged harasser and must not be under
the direct control of the alleged harasser.
• Timeliness: The practices recommend that the
investigation be carried out within 90 calendar days
of the complaint/incident or less (unless extenuating
circumstances are present).
• Confidentiality: The investigator must ensure that the
investigation, and any identifying information, is kept
confidential and is not disclosed except as required by
law.
• Thoroughness: The worker and the alleged harasser
(wherever possible) must be interviewed; witnesses
must be interviewed separately; the alleged harasser
must be given the opportunity to respond to the specific
allegations raised; and all relevant documents must be
reviewed.
• Documentation: The investigator must take appropriate
notes and statements during the interviews and prepare
a final written report summarizing the steps taken during
the investigation, the allegations, the response from the
alleged harasser and the evidence gathered. The report
must set out the findings of fact and come to a conclusion
about whether or not workplace harassment was found.
e: [email protected]
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
Investigating
Complex Cases
October 28 in
Calgary
This advanced workplace
investigation training
course looks at some
unusual starting points
for investigations and
covers:
• investigations into
complaints of systemic
discrimination;
• responding to
anonymous
complaints;
• and reviews,
assessments and
other processes which
can be undertaken
when there is no
“complainant”.
Participants will
be provided with a
diagnostic tool or
“roadmap” to assist
them in determining
the appropriate course
of action when they hit
an investigation “road
block.”
Register online at
rtworkplacetraining.com.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Workplace Investigation Alert
Ministry of Labour publishes its Code of Practice under Bill 132 –
Some Questions Answered, Some Not
• Proportionality: The preamble to the Practice
suggests that the level of thoroughness and length of
an investigation should be commensurate with the
complexity of the issues raised.
Assessing
Credibility
November 16 in
Toronto
This high-level articulation of these components provides
employers with a general idea of what goes into a good
investigation but, employers will need more practical
knowledge and skills if this statutory obligation is going to
generate successful workplace investigations.
Take your workplace
investigation skills to the
next level with Assessing
Credibility.
The need for additional training for investigators is
articulated elsewhere in the Code of Practice. According to
the practices section of Part 4:
“Investigators whether a manager, supervisor, human
resources representative or a person designated by the
employer, must receive information and instruction
on how to conduct an investigation appropriate in the
circumstances […]”
Therefore, we expect that to the extent that an inspector
becomes involved, he or she would look at the overall
competency and skill level of the investigator, with one of
the questions asked being, have you received any specialized
training in the conduct of workplace investigations and
workplace harassment.
External investigation
The lack of clear direction with respect to section 37.02(1)(a)
is made more troublesome by the presence of section 55.3(1)
of the OHSA – which is not discussed in the Code of Practice.
Under this section, a Ministry of Labour inspector can order
an investigation under s. 37.02(1)(a) to be carried out at the
expense of the employer by a “an impartial person possessing
e: [email protected]
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
This course has been
designed for anyone who
has ever investigated
a set of allegations
and struggled to make
a finding at the end.
Perhaps it is one person’s
word against another,
or maybe you just don’t
have the confidence to
feel you can decide who
is lying and who is telling
the truth.
Learn about the science
of lie detection, find
out which approaches
work and which don’t,
and learn valuable tools
to assist you in making
decisions.
Register online at
rtworkplacetraining.com.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Workplace Investigation Alert
Ministry of Labour publishes its Code of Practice under Bill 132 –
Some Questions Answered, Some Not
such knowledge, experience or qualifications as are specified
by the inspector and to obtain, at the expense of the
employer, a written report by that person.”
Unfortunately, the Code of Practice does not provide any
guidance on the circumstances or events that would trigger
an inspection by the Ministry of Labour or such an order. As
such we are left guessing about the intended application of
this section:
Will the Ministry of Labour be accepting complaints
directly from complainants? Will the inspectors be issuing
orders in response to investigations that failed to meet the
“appropriate in circumstances” standard? Will employers
be given the opportunity to conduct investigations
internally before being ordered to retain an external
investigator? Will external investigations be reserved
for high-profile cases or cases that have attracted media
attention?
Conclusion
The Code of Practice provides some valuable practical
guidance and resources for employers looking to implement
the workplace harassment provisions of the OHSA this
September but leaves some major grey areas with respect to
the employer’s duty to investigate and the lengths that must
be taken to satisfy this statutory obligation.
In light of this, employers may not want to wait until they
receive an order from the Ministry of Labour to seek external
support. Until more is understood about section 37.02(1)
(a) and its application, legal counsel, external investigation
services and training providers can help employers to fill in
the gaps left by the Code of Practice and navigate the stillmurky waters of section 37.02(1)(a).
@rubinthomlinson
t: 416.847.1814
Here’s what we’ve been
blogging about:
Court of Appeal Affirms
Chaos in the Realm of
Termination Clauses
Forgetting that common
law principles also apply
Recently in BC: It Takes
a lot of Moxie to Make a
Finding Against Someone
Without Their Evidence
150 Words
Unsuccessful Redo on
Reinstatement Ruling
The Truth About
Defamation in Workplace
Terminations
Should you conduct a
workplace investigation
for your own client?
These questions all remain to be answered.
e: [email protected]
RT Law at Work
Blog
f: 416.847.1815
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Expands the Actionable
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Workplace Investigations
New Regulation for
Colleges and Universities
under Bill 132: Some
Answers, But More
Questions
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com