When an Ontario employee reports workplace harassment, an employer cannot simply say that it looked into the complaint. Under the Occupational Health and Safety Act, the employer must ensure that an investigation appropriate in the circumstances is conducted.
A recent Ontario Labour Relations Board decision provides useful guidance on what that obligation means in practice.
In Alyssa Gassi v. The Corporation of the County of Lambton, the Board found that an employer’s workplace investigation was inadequate because it was too limited and did not provide the employee with a meaningful opportunity to respond to important evidence.
The decision offers practical lessons for both employers and employees involved in workplace complaints.
What happened in the Gassi case?
The employee, a municipal prosecutor, raised allegations of workplace harassment involving several individuals.
The employer appointed an internal investigator. However, the investigator interviewed the employee and only one other person before concluding that the allegations were not substantiated.
The employee later challenged the investigation before the Ontario Labour Relations Board.
Although the Board dismissed her separate claim that she had been terminated in reprisal for making the complaint, it found that the investigation itself was not appropriate in the circumstances.
This distinction is important. An employer may successfully defend a termination decision while still failing to meet its legal obligations regarding the investigation.
Why was the investigation inadequate?
The complaint identified several individuals who may have had relevant information. The investigator interviewed only one of them and did not adequately explain why further interviews were unnecessary.
The investigator also relied on information from that witness without giving the employee a proper opportunity to respond.
The Board did not say that every proposed witness must always be interviewed. Investigators may reasonably decide that certain evidence is irrelevant, repetitive, or unnecessary.
However, those decisions should be reasonable and properly documented.
An investigation may be vulnerable where the investigator:
- Interviews very few relevant witnesses;
- Ignores potentially important evidence;
- Fails to explain why the investigation was limited;
- Accepts conflicting evidence without seeking clarification; or
- Does not allow the affected parties to respond to material allegations.
What makes an investigation appropriate?
The scope of an investigation should reflect the seriousness and complexity of the complaint.
A relatively straightforward complaint may require a focused internal review. More serious allegations involving senior management, discrimination, sexual harassment, retaliation, or potential termination may require a more formal or independent process.
An appropriate investigation will generally include:
- Clearly identifying the allegations;
- Selecting a capable and impartial investigator;
- Interviewing the complainant and responding party;
- Interviewing relevant witnesses;
- Reviewing relevant documents, messages, policies, or recordings;
- Allowing the parties to respond to important conflicting evidence;
- Making findings based on the available evidence; and
- Communicating the outcome and any corrective action in writing.
Employers should also ensure that their workplace policies and investigation procedures clearly explain how complaints will be handled.
Can an employer use an internal investigator?
Yes. Employers are not required to hire an outside investigator for every complaint.
An internal human resources professional, manager, or other employee may conduct the investigation if that person:
- Understands workplace harassment law and company policies;
- Has sufficient investigation knowledge or experience;
- Has no personal interest in the outcome; and
- Can conduct the investigation objectively.
An external investigator may be preferable where the complaint involves senior leadership, a potential conflict of interest, serious misconduct, or concerns about the employer’s independence.
Pelsmakher Law assists employers through its HR advisory services, including advice on investigation planning, workplace policies, and disciplinary decisions.
Implications for Ontario employees
Employees making a workplace complaint should provide specific information, including:
- What occurred;
- When and where it happened;
- Who was involved;
- The names of potential witnesses; and
- Any relevant emails, messages, documents, or recordings.
Employees are not automatically entitled to choose the investigator, require every witness to be interviewed, or receive a particular result.
However, an employee may have legitimate concerns where the investigator appears biased, refuses to consider important evidence, or relies on evidence without giving the employee an opportunity to respond.
Where the alleged conduct relates to disability, sex, race, age, religion, family status, or another protected ground, the complaint may also raise issues under the Ontario Human Rights Code. More information is available on Pelsmakher Law’s workplace discrimination page.
What if an employee is terminated after making a complaint?
Ontario employers cannot dismiss, discipline, intimidate, or penalize an employee because the employee reported workplace harassment or exercised rights under occupational health and safety legislation.
However, making a complaint does not prevent an employer from proceeding with legitimate discipline or termination for unrelated reasons.
In the Gassi case, the Board accepted that the termination was based on reasons separate from the harassment complaint, even though the investigation was inadequate.
Employers considering termination after a complaint should carefully document the reasons for the decision and keep the termination process separate from the investigation.
Employees terminated shortly after making a complaint should preserve relevant records and obtain legal advice. Timing alone may not prove reprisal, but it can be an important part of the surrounding evidence.
Pelsmakher Law advises employees and employers on terminations and severance, workplace reprisals, and related litigation risks.
Practical steps for employers
When a workplace harassment complaint is received, employers should:
- Respond promptly.
- Preserve relevant documents and communications.
- Select an impartial and qualified investigator.
- Identify the allegations and relevant witnesses.
- Interview both sides and any necessary witnesses.
- Allow the parties to respond to material conflicting evidence.
- Document important procedural decisions.
- Communicate the results and corrective action in writing.
- Protect participants from retaliation.
- Review whether policies, training, or supervision should be improved.
The investigation does not need to be perfect. It must be fair, proportionate, and capable of producing reliable findings.
Frequently Asked Questions
Must every workplace complaint be formally investigated?
Not every disagreement requires a lengthy investigation. However, employers must investigate incidents or complaints that may constitute workplace harassment.
Does every witness named by an employee have to be interviewed?
No. An investigator may reasonably decide that a witness has no relevant information or would provide repetitive evidence. The reason for excluding an important witness should be documented.
Must an employer provide the complete investigation report?
Not necessarily. The employer must provide written notice of the investigation results and any corrective action, but generally does not have to disclose every interview note or piece of evidence.
Can an employee be terminated after making a harassment complaint?
Yes, but not because the employee made the complaint. The employer must be able to show that the termination was based on legitimate, unrelated reasons.
What can happen if an investigation is inadequate?
An employer may face an OLRB proceeding, Ministry of Labour involvement, a further investigation, human-rights exposure, grievances, or increased litigation risk.
The bottom line
The Gassi decision confirms that Ontario employers cannot satisfy their legal obligations through a superficial or predetermined investigation.
Employers must gather enough relevant information to make reliable findings, explain important decisions about the investigation’s scope, and give the parties an opportunity to respond to material evidence.
Employees are entitled to a genuine investigation, although not necessarily a particular outcome.
Pelsmakher Law advises employees and employers on workplace harassment complaints, investigations, human-rights issues, reprisals, discipline, and related terminations. To discuss a workplace matter, contact Pelsmakher Law.
