The call usually starts the same way. An employee has raised a complaint about a coworker, or about their manager, and someone in the organization now has to decide what to do with it. Sometimes the complaint arrives as a formal letter. More often it is an email to HR, a conversation with a founder, or something said in an exit interview that nobody can unhear.
Deciding that something has to happen is the easy part. The harder part is doing it in a way that holds up later, when the complainant, the respondent, a tribunal, an insurer or a lawyer reads the file and asks how the decision was made. In British Columbia, WorkSafeBC policy requires employers to have procedures setting out how and when investigations into bullying and harassment will be conducted, and to make sure those procedures are followed. In Ontario, section 32.0.7 of the Occupational Health and Safety Act requires an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances. Most organizations accept that they have to respond. Where they get into difficulty is how.
This guide sets out what an organization can do in the first few days, what changes when the complaint is about a leader, and how an independent investigation works from the first conversation to the final report.
The first few days
What happens before an investigator is involved can protect the process or quietly damage it. These steps are worth taking early.
- Acknowledge the complaint in writing. Confirm it has been received and will be taken seriously, without promising a particular outcome or a timeline that has not yet been set.
- Hold off on interviewing people. Well-meaning early conversations are one of the most common ways evidence gets compromised. A witness learns what the complaint is about, the respondent hears about it second-hand, and accounts begin to line up before anyone has been asked a neutral question.
- Preserve what exists. Emails, chat messages, schedules, prior complaints and personnel records connected to the allegations should be secured, including anything that routine retention settings would otherwise delete.
- Consider interim measures. Where there is a safety concern, or the parties work closely together, a temporary change such as a schedule adjustment, a change in reporting line or a paid administrative leave may be appropriate. Interim measures should not penalize the person who complained, and they are not a finding against anyone.
- Keep the circle small. The complaint should be shared only with the people who need to act on it, and everyone involved should be reminded that retaliation against a person who raises a concern or takes part in the process is prohibited.
- Check the policy. Most organizations have a respectful workplace or harassment policy that says who receives complaints and how they are handled. Where the policy sets out a process, the organization is expected to follow it.
- Bring in counsel where the stakes are high. If the respondent is senior, the complainant has a lawyer, or termination is a realistic outcome, early legal advice is worth the cost.
When the complaint is about the boss
A complaint against a coworker and a complaint against a manager follow the same basic process. What changes is who can credibly run it.
When the respondent is a supervisor, director, executive or founder, the people who would normally handle a complaint often report to that person or work beside them every day. The HR lead may have been hired by the respondent. In a smaller organization, the owner may be the respondent. None of this means anyone would act unfairly. The test is whether the outcome will be accepted by the people who did not want it, and a finding produced by someone in the respondent’s reporting line is easy to challenge regardless of its quality.
A complaint about a leader also raises the stakes on both sides. The complainant has taken a real risk by coming forward and will be watching for signs that the organization is protecting its own. The respondent may be facing discipline that ends a career and is owed a process that is fair to them as well. The organization needs a record that will stand up to scrutiny from either direction.
In practice, the investigator should report to someone outside the respondent’s line of authority, such as a board chair, a designated committee or legal counsel. These matters also tend to take longer, because more people are involved and more is at stake.
Not every complaint needs a full investigation
A formal investigation produces findings of fact, and those findings can support discipline. Opening one also tells the workplace that something serious is under way, puts a respondent through a process before anything has been found, and can freeze a working relationship for weeks. That is justified when the allegations warrant it.
Some complaints, once examined closely, describe interpersonal conflict or a clash in communication styles rather than conduct that breaches a policy or the law. Those are real problems and they deserve a response, but a finding of fact may not be the right tool for them. For that reason the process below is staged, and the organization decides at the end of each stage whether to continue, based on what the evidence shows.
How the process works
There are four stages. Each builds on the one before it, and no work is repeated or billed a second time.
Preliminary Review and Assessment, without interviews
This stage suits an organization that is not yet certain a full investigation is needed, or counsel who wants the record assessed before committing to a process. It includes:
- review of the allegations as written, and of any response the respondent has already provided;
- review of the documentary and digital evidence supplied, such as complaint correspondence, policies and procedures, prior process notes, relevant personnel material, emails and messages;
- identification of the regulatory frameworks each allegation engages, which may include human rights legislation, occupational health and safety obligations on bullying and harassment, employment standards, a collective agreement, and the organization’s own policies;
- assessment of each allegation against those frameworks and policies on the material available;
- identification of the gaps, meaning what is missing from the record, what is disputed, and what could only be resolved by interviewing people; and
- a written assessment memo setting out what the evidence shows, which allegations can be assessed on the record alone, which require interviews, and the options available, including whether a full investigation is warranted or whether the matter is better resolved another way.
On request, the memo is presented to leadership or the board in a meeting where questions can be answered, so that the decision on whether to proceed is made on a shared understanding of the material. No interviews are conducted and no findings are made at this stage.
Phase 1: Assessment with interviews
Phase 1 builds on the preliminary review. The complainant and the respondent are interviewed, their accounts are evaluated against the evidence already reviewed, and the whole is compared against the organization’s policies and the regulatory frameworks that apply to each allegation.
Phase 1 ends with a written recommendation on whether a full investigation is warranted. Not every complaint meets that threshold. Where it does not, the organization keeps a documented record of the basis for that decision, which matters if the same concern is raised again.
Phase 2: Evidence gathering
Where a full investigation is authorized, Phase 2 gathers the remaining evidence. This includes witness interviews, further review of documentary and digital evidence, and follow-up meetings with the parties so that each has a fair opportunity to respond to the evidence that bears on them.
Phase 3: Findings and report
Phase 3 delivers the outcome: a credibility analysis where accounts conflict, and a confidential written report that addresses each allegation individually, with findings of fact on the balance of probabilities and actionable recommendations. The findings are then presented to leadership or the board. That session covers the process followed, the evidence considered, the finding on each allegation and the recommendations, with time for questions.
Phases 2 and 3 run together as one continuous investigation once authorized. Where an organization has already decided that a full investigation is required, it can retain directly for the complete mandate, and the work moves from the Terms of Reference straight into evidence gathering.
What the people involved can expect
Findings are only usable if the process that produced them was fair. In Canada, a respondent is entitled to know the particulars of what is alleged and to answer them before anything is decided. In the United States, the California Supreme Court in Cotran v. Rollins Hudig Hall International described an adequate investigation as one that includes notice of the claimed misconduct and a chance for the employee to respond. The same principle runs through both systems.
Every person interviewed, whether a party or a witness, receives a written process and expectations document in advance. It explains the investigator’s role and scope, confidentiality and its limits, the right to bring a support person or union representative, how to request an accommodation, what the interview involves, the commitment against retaliation, and the expected timeline.
Interviews are recorded with the participant’s consent on a device that is not connected to cloud storage, and then transcribed. Where a participant does not consent to recording, contemporaneous notes are taken instead. People are given the time and space to give a full account, and every participant is treated with respect regardless of the allegations. Where a party connects the conduct to a disability or an accommodation need, that information is recorded and referred to the organization. It is not assessed or resolved as part of the investigation.
What the findings are, and what they are not
Findings are made on the balance of probabilities, which asks whether it is more likely than not that something happened. The Supreme Court of Canada confirmed in F.H. v. McDougall that this is the only civil standard of proof, and that it does not rise because an allegation is serious.
The analysis keeps two questions apart. The first is whether the events occurred. The second is whether the facts found meet the definition in the relevant policy or regulatory framework. Keeping those questions separate makes the report easier to follow and harder to attack. It also reflects how working relationships actually are. A relationship does not have to have been uniformly bad for a complaint to be founded, and a complaint is not disproven because some interactions were positive.
The investigator determines the facts and whether policy was breached. Liability, severance and decisions about discipline remain with the organization and its counsel. Recommendations may include disciplinary measures, up to and including termination, where conduct is serious and substantiated. In that case the organization should consult legal counsel before acting, and the decision to act rests with the organization.
When the process pauses
Some information changes what the investigation can responsibly do.
- Possible criminal conduct. Where information suggests that conduct may be criminal, the investigation is paused on that subject matter. A private process running alongside a police investigation risks compromising both. Evidence gathered to that point is preserved and secured, the organization is notified in writing and advised to inform counsel and the appropriate authority, and work continues on unaffected parts of the mandate where that is appropriate.
- Risk to a child. Where information gives reason to believe a child has been harmed or is at risk of harm, child protection reporting duties apply. In British Columbia that duty arises under the Child, Family and Community Service Act. It is personal and immediate, and it is not displaced by the retainer, by client instructions or by any confidentiality term. The organization is advised that a report has been made.
- Ongoing safety concerns. Where safety or ongoing harm is a concern, interim measures are identified for the organization to consider, including any step needed to separate individuals. The decision rests with the organization.
An independent investigator alongside legal counsel
An investigator works alongside counsel rather than replacing them. Counsel frames the questions that matter to the legal position, provides legal advice and reviews the process, while the investigator handles the fact-finding, the interviews and the report.
That division usually costs less, because the hours-intensive work is billed at a lower rate than a law firm charges. It also protects counsel, since a lawyer who conducts an investigation can become a witness to their own process if it is later challenged. And when the organization’s own lawyer investigates, employees often see the process as the organization defending itself, which is much harder to say of an investigator with no other relationship to the workplace.
There are two ways to structure the retainer. The investigator can be retained through the organization’s external counsel, with findings delivered to counsel to inform legal advice, or retained directly by the organization for a factual report, with counsel remaining separate. An investigation report does not automatically attract legal privilege, so the choice should be made deliberately, on counsel’s advice, before the work begins.
How long it takes
A formal investigation typically runs 30 to 60 days from the signing of the Terms of Reference. Where the respondent is senior, there is more than one complainant, or counsel is involved on both sides, 60 to 90 days is more realistic. If a matter runs past 60 days, both parties receive a written status update. An investigation that stretches beyond 90 days without a documented reason is materially harder to defend.
Getting started
- A scoping conversation to confirm the allegations, the volume of material and the parties involved, along with a documented conflict check.
- A services agreement, confidentiality agreement and Terms of Reference issued for signature, followed by the deposit.
- Intake, scheduling and an action plan within three to five business days of signing.
Leaders rarely get to practise this before it matters. The steps are not complicated, but the order matters, and so does who runs them. A finding is only as strong as the process that produced it.
Sources
- WorkSafeBC, OHS Policy P2-21-2, Employer Duties, Workplace Bullying and Harassment (effective November 1, 2013): worksafebc.com/en/health-safety/hazards-exposures/bullying-harassment
- Ontario, Occupational Health and Safety Act, RSO 1990, c. O.1, s. 32.0.7: ontario.ca/laws/statute/90o01
- F.H. v. McDougall, 2008 SCC 53: canlii.org/en/ca/scc/doc/2008/2008scc53/2008scc53.html
- Cotran v. Rollins Hudig Hall International, Inc., 17 Cal. 4th 93 (1998)
This guide is general information about the workplace investigation process. It is not legal advice. For advice on a specific situation, consult an employment lawyer.