Workplace Investigations in Ontario, Part 2: When Employers Get It Wrong

Written on behalf of Peter McSherry

Many employees enter workplace investigations expecting a fair and neutral process. Employers often present investigations as objective efforts to uncover the truth, guided by policy and professionalism. In theory, this is how workplace investigations should function.

In practice, however, not all investigations meet this standard. Flawed processes, biased decision-making, and incomplete findings are more common than many employees realize. When an investigation is conducted improperly, the consequences can be significant—particularly where the outcome leads to discipline, reputational harm, or termination.

For employees in Ontario, understanding when a workplace investigation has gone wrong and what legal remedies may be available is essential.

The Myth of the “Neutral” Investigation

Employers often emphasize that investigations are impartial and independent. However, in many cases, the investigator is selected and paid by the employer. This dynamic can create real or perceived pressure to reach conclusions that align with organizational interests.

Even when an investigator acts in good faith, the process’s structure may still raise concerns. Employers typically define the scope of the investigation, determine which witnesses are interviewed, and control the disclosure of findings. Employees rarely have input into these decisions.

As a result, what is presented as a neutral process may, in reality, be shaped by internal priorities, risk management considerations, or workplace dynamics.

What Makes an Investigation Unfair?

Not every imperfect investigation will give rise to a legal claim. However, certain deficiencies may indicate that a process is fundamentally flawed.

One common issue is a lack of impartiality. This may arise where the investigator has a prior relationship with one of the parties, has been involved in related workplace issues, or appears to approach the investigation with a predetermined view.

Another concern is the failure to gather relevant evidence. This can include not interviewing key witnesses, ignoring documentary evidence, or failing to follow up on inconsistencies.

Procedural fairness is also critical. Employees should generally be informed of the allegations against them and given a meaningful opportunity to respond. Where an employee is not provided with sufficient information or time to respond, the fairness of the process may be called into question.

These issues do not always appear in isolation. In many cases, multiple deficiencies combine to produce an unreliable or unjust outcome.

Internal Investigators and Conflicts of Interest

Many employers rely on internal HR personnel or managers to conduct investigations. While this may be efficient, it can also create challenges.

Internal investigators may have existing relationships with the individuals involved, including supervisors or decision-makers. They may also be influenced by broader organizational concerns, such as minimizing legal exposure or preserving workplace harmony.

Even where no actual bias exists, the appearance of bias can undermine confidence in the process. Employees who feel that the investigation was not truly independent may be more likely to challenge the outcome.

In more serious or complex cases, employers may retain external investigators. While this can improve objectivity, it does not guarantee fairness. External investigators are still retained by (and report to) the employer.

Inadequate Findings and Poor Documentation

The quality of an investigation is often reflected in its findings. In some cases, employees receive only a brief summary of the outcome, with little explanation of how the conclusions were reached.

Poorly conducted investigations may rely on vague or unsupported findings. For example, an investigator may conclude that one party was “more credible” without explaining why, or may fail to address contradictory evidence.

In other situations, key issues may be overlooked entirely. This can occur where the scope of the investigation is too narrow or where relevant evidence was not considered. These deficiencies can have serious implications, particularly where the findings are used to justify discipline or termination.

Retaliation: A Common but Overlooked Risk

Employees who participate in workplace investigations, especially as complainants, may be concerned about retaliation. While employers are generally prohibited from penalizing employees for raising complaints or participating in investigations, retaliation can still occur.

Retaliation is not always obvious. It may take the form of reduced responsibilities, exclusion from meetings or opportunities, negative performance evaluations, or strained workplace relationships.

Where a complaint involves discrimination or harassment based on protected grounds, retaliation may engage protections under the Ontario Human Rights Code. In these cases, adverse treatment following a complaint may give rise to a human rights claim. Recognizing the signs of retaliation is an important step in protecting your rights.

When Investigations Lead to Termination

One of the most serious consequences of a workplace investigation is termination of employment. In some cases, employers rely heavily on investigation findings to justify dismissal.

However, a flawed investigation can undermine the legitimacy of a termination. If an employer relies on an unfair or incomplete process, the dismissal itself may be vulnerable to challenge.

For example, where an employee is terminated for alleged misconduct following a deficient investigation, they may have a claim for wrongful dismissal. This is particularly relevant where the employer asserts “just cause” but cannot substantiate the allegation through a fair process. In addition, the manner in which the investigation and termination are conducted may give rise to further claims, including damages for bad faith.

Alternatively, a constructive dismissal claim may be available where the investigation process itself (or the surrounding workplace treatment) fundamentally alters the employment relationship.

What Evidence Should Employees Keep?

Employees who are involved in a workplace investigation should be mindful of preserving relevant information. This can include emails, text messages, and internal communications related to the issues under investigation. Notes from interviews, timelines of events, and records of interactions with management or HR may also be important.

Where possible, employees should keep copies of any written complaints, responses, or correspondence related to the investigation. These materials can be critical in assessing whether the process was conducted fairly.

Maintaining organized records can strengthen your position if concerns arise later or if legal action becomes necessary.

Peter A. McSherry Employment Lawyer: Take Action if Your Workplace Investigation Was Unfair in Guelph

If you believe a workplace investigation has been conducted unfairly, it is important to act promptly. The way an investigation is handled can have lasting consequences for your employment, your reputation, and your legal rights.

Peter A. McSherry Employment Lawyer represents employees in Guelph and across Ontario in matters involving workplace investigations, wrongful dismissal, and human rights claims. Peter A. McSherry understands how these processes unfold and how they can go wrong.

If you have concerns about a workplace investigation or its outcome, contact our firm online or call 519-821-5465 for a confidential consultation. We can help you assess your options, protect your rights, and determine the best path forward.