Workplace Investigations in Ontario, Part 1: What Employees Need to Know Before Participating

Written on behalf of Peter McSherry

Workplace investigations are increasingly common across Ontario workplaces. Whether triggered by allegations of harassment, discrimination, misconduct, or policy breaches, these processes can have serious consequences for employees. Participating in an investigation—whether as a complainant, respondent, or witness—is not a casual or risk-free experience. The outcome can affect your employment, reputation, and future opportunities.

Despite their importance, many employees enter workplace investigations without a clear understanding of their rights or obligations. Employers often control the process, set the rules, and determine the scope of the investigation. As a result, employees may feel uncertain about what they can say, what they must do, and how to protect themselves.

In Part 1 of this 2-part blog series, we set out considerations for employees facing a workplace investigation.

When Are Workplace Investigations Required?

In Ontario, employers are not always free to decide whether to investigate a workplace issue. In certain circumstances, investigations are legally required.

Under the Occupational Health and Safety Act (OHSA), employers have a duty to investigate complaints of workplace harassment. This includes allegations of bullying, inappropriate conduct, and other forms of workplace mistreatment that fall within the statutory definition of harassment. Employers must ensure that an investigation is conducted that is appropriate in the circumstances.

In addition, complaints involving discrimination or harassment based on protected grounds (such as disability, gender, race, or age) may engage obligations under the Ontario Human Rights Code. While the Code does not prescribe a specific investigation process, employers are expected to respond meaningfully to complaints and take steps to address potential violations.

Even where no specific statutory obligation applies, most employers have internal policies requiring investigations into workplace complaints. These policies often outline procedures for reporting concerns, conducting interviews, and issuing findings.

For employees, the key takeaway is that workplace investigations are not optional in many cases. If a complaint has been raised, participation may be expected and, in some cases, required.

What Does a Typical Workplace Investigation Look Like?

Although each workplace investigation is different, most follow a similar structure. The process usually begins with a complaint. This may be made formally, through HR or management, or informally, depending on the workplace. Once a complaint is received, the employer typically appoints an investigator. This may be an internal HR professional or manager, or an external third-party investigator retained for neutrality.

The investigator will then gather information. This often includes interviewing the complainant, the respondent, and any relevant witnesses. Documents such as emails, text messages, performance reviews, and internal policies may also be reviewed.

Following the evidence-gathering stage, the investigator will assess credibility, weigh conflicting accounts, and prepare findings. These findings may determine whether workplace policies were breached and may lead to disciplinary action, including termination.

Importantly, employees are rarely given full access to the investigation report. Instead, they may receive a summary of the findings or simply be informed of the outcome.

Your Role in the Investigation: Why It Matters

Employees may be involved in a workplace investigation in one of three primary roles: complainant, respondent, or witness. Each role carries different risks and considerations.

A complainant is the individual who has raised the concern. While this role may seem straightforward, complainants must still be prepared to provide detailed and consistent information. Their credibility may be scrutinized, and the outcome is not guaranteed to align with their expectations.

A respondent is the individual whose conduct is being investigated. This is often the highest-risk position, as the findings may result in discipline or termination. Respondents should approach the process carefully, as statements made during interviews can have significant consequences.

Witnesses are often overlooked, but their participation can also carry risk. Witnesses are expected to provide truthful information, but may find themselves drawn into workplace conflict or facing unintended repercussions.

Regardless of your role, it is important to understand that your participation forms part of the evidentiary record. What you say and how you say it can influence the outcome.

Do You Have the Right to Legal Representation?

One of the most common questions employees ask is whether they can have a lawyer present during an investigation interview. In most non-unionized workplaces, there is no automatic right to legal representation during internal workplace investigations. Employers typically expect employees to participate in interviews independently.

However, this does not mean employees are without support. In unionized environments, employees may have the right to representation through their union. In non-unionized settings, employees may still consult with an employment lawyer before or after an interview to understand their rights and obligations.

This can be particularly important where the allegations are serious, where termination is a possible outcome, or where the investigation involves complex legal issues such as discrimination or harassment.

Confidentiality: What Are You Allowed to Say?

Employers often emphasize that workplace investigations are confidential. Employees may be instructed not to discuss the investigation with coworkers or others.

While confidentiality is an important feature of many investigations, it is not absolute. In practice, information may still circulate within the workplace, and strict confidentiality can be difficult to maintain.

Employees should take these instructions seriously, but also understand their limits. For example, speaking with a lawyer for the purpose of obtaining legal advice is generally permitted. Similarly, employees may need to discuss the situation with close family members or support persons.

At the same time, discussing the investigation openly with colleagues or posting about it on social media can create additional risk. Such actions may be viewed as undermining the process or breaching workplace policies.

Risks Employees Should Be Aware Of

Workplace investigations are often presented as neutral fact-finding exercises. However, employees should be aware that there are real risks involved.

One common issue is inconsistency. If an employee provides information that later appears contradictory or incomplete, it may affect their credibility. This is particularly important where there are limited witnesses or conflicting accounts.

Another concern is bias, whether real or perceived. Internal investigators may have relationships with the individuals involved or may be influenced, consciously or unconsciously, by workplace dynamics.

There is also the risk of retaliation. Although employers are prohibited from penalizing employees for participating in investigations, particularly in the context of harassment or human rights complaints, retaliation can still occur in subtle ways, such as changes in duties, exclusion from opportunities, or negative performance assessments. These changes can, in some circumstances, even constitute constructive dismissal.

Practical Tips Before and During an Investigation

Employees do not need to navigate workplace investigations blindly. There are practical steps that can help protect your interests. Before participating in an interview, take time to review the events in question and organize your thoughts. If possible, gather relevant documents such as emails or messages that may assist your recollection.

During the interview, focus on providing clear, factual answers. Avoid speculation or exaggeration, and do not guess if you are unsure. It is acceptable to say that you do not remember or that you need to review information before responding.

It can also be helpful to keep your own notes regarding what was discussed, including the date of the interview and the topics covered. While you may not have access to the official record, maintaining your own account can be valuable if issues arise later. Where concerns exist about the fairness of the process or the potential consequences, seeking legal advice can provide clarity and guidance.

What Happens Next?

Many employees assume that workplace investigations are conducted fairly and impartially. While this is the goal, the reality is that not all investigations meet this standard.

Flawed processes, biased investigators, and inadequate findings are more common than many employees expect. In some cases, the outcome of an investigation can lead directly to discipline or termination, even where the process itself was questionable.

In Part 2 of this series, we examine what happens when workplace investigations go wrong, including the legal remedies that may be available to employees and how to recognize when an investigation may give rise to a claim.

Peter A. McSherry Employment Lawyer: Advocating for Ontario Employees in Workplace Investigations

If you are involved in a workplace investigation, whether as a complainant, respondent, or witness, it is important to understand your rights before taking further steps. What you say during an investigation can have lasting consequences for your employment and your legal position.

Peter A. McSherry is an experienced employee-side employment lawyer who can help you assess the situation, prepare for interviews, and identify potential risks. Early advice can make a meaningful difference, particularly where allegations are serious or where your job may be at stake.

If you have concerns about a workplace investigation or believe your employer may not be handling the process fairly, contact our firm online or call 519-821-5465 to book a confidential consultation.