HR Internal Investigations 2025 Comparisons

An internal HR investigation is typically done when a concern or allegation is raised regarding the workplace which, if true, would: (i) amount to workplace harassment and/or workplace violence; (ii) constitute a violation of human rights legislation (such as racial or gender-based discrimination or sexual harassment); (iii) employee misconduct which may result in an employee’s termination of employment for “just cause”; and/or (iv) pose a legal or reputational risk to the organisation.

In Canada, an employer is generally required to conduct a workplace investigation when an employee alleges: (i) workplace harassment (including sexual harassment) and/or bullying; (ii) discrimination or harassment based on any personal characteristic such as gender, race, religion, disability or as otherwise protected at law. This duty to investigate comes from an employer’s obligation to provide a workplace free from harassment and discrimination.

In addition to the circumstances that require an internal workplace investigation, employers may also investigate other employee misconduct or problematic workplace behaviour, health and safety concerns, or breaches of their workplace policies.

Federally regulated employers are required to have a workplace harassment and violence prevention policy that sets out the manner in which a party may notify the employer of an occurrence of harassment or violence in the workplace. While provincial legislation governing workplace harassment varies somewhat, most provincially regulated employers must also have a written policy with respect to workplace harassment and workplace violence, which must include measures and procedures for reporting workplace violence and/or harassment.

Investigator selection is a crucial component of any investigation. A workplace investigator (whether internal or external) should be neutral (ie, fair and impartial); skilled in conducting workplace investigations; and available. Internal HR investigations are often conducted by human resources or labour relations professionals, in-house counsel, or internal workplace investigators. An organisation often sets out in its workplace policies that an investigation will be done internally or, depending on the circumstances, may decide to retain an external workplace investigator. A decision as to whether to proceed with an internal or external investigator largely depends on the particular circumstances. Some circumstances in which an organisation may decide to proceed with an external investigator are set out below:

• if the allegations are particularly serious or complex;
• if the allegations involve senior employees within the organisation;
• if the allegations involve multiple parties;
• if the organisation wants to ensure that the neutrality of the investigator cannot be challenged;
• if there is a high likelihood of a legal challenge or proceedings; and/or
• as a result of time constraints and internal resources (ie, the organisation neither has an internal workplace investigator available or at all).

For provincially and federally regulated employers, many of the provinces have case law that obligates employers to investigate harassment or discrimination complaints under the applicable human rights legislation.

Under certain occupational health and safety legislation, many provincially regulated employers also have a legal obligation to investigate allegations of harassment or violence, but the nature of the obligation may differ. For example, in Ontario, under occupational health and safety legislation, employers also have a duty to investigate both “incidents” and “complaints” of workplace harassment, including sexual harassment. Even where an incident does not form the subject matter of a complaint, an employer has an obligation to investigate once the harassment “becomes known to the employer”. In British Columbia, there is no express requirement to conduct an investigation into bullying and harassment complaints or incidents, but employers may still be required to do so under their obligation to take reasonable steps to prevent or minimise workplace harassment and bullying.

Federally regulated employers are expressly required to investigate all occurrences of harassment and violence whenever an employee files a “notice of occurrence” or complaint under the Work Place Harassment and Violence Prevention Regulation (WHVP).

There are no real prohibitions on carrying out a workplace investigation, but there may be some circumstances in which employers may decide not to do so, as further detailed in 1.7 Other Cases.

When faced with the decision as to whether or not to conduct a workplace investigation, it can be helpful to consider the following: if the allegation, concern or issue that has been brought to the organisation’s attention is true, would it be contrary to any law or otherwise problematic for the organisation in any way (including reputational risk)? If the answer to this threshold question is “yes”, then more often than not, an organisation should consider conducting a workplace investigation.

For internal investigations commenced under provincial legislation, the degree of information that must be provided to the “reporter” (ie, someone who reports a complaint) will vary depending on the nature of the conduct reported as well as the reporter’s role and knowledge of the reported conduct. In general, employers should confirm receipt of any reports unless the report is anonymous. If a reporter is also a complainant, then the complainant should be advised that an HR internal investigation has or will be commenced. It may be appropriate to give them additional details (ie, information about the investigator or interim measures). If a reporter is a third-party or witness, the extent of information provided will depend on their level of involvement and the nature of the conduct. In some cases, it may be appropriate to advise that an investigation has or will be commenced while, in other cases, employers may want to confirm receipt but limit any further information on next steps. Reporters should also be advised that they should keep the matter confidential (although they may share information with their spouse or legal counsel or as may be required at law).

For internal investigations for federally regulated employers, the WHVP provides specific steps that must occur after receiving a report of an “occurrence” of harassment and violence. Employers governed by the WHVP must confirm receipt of the report within seven days and also provide further information to either the complainant or party who is the object of the occurrence (ie, the “principal party”) (see Section 20–21 of the WHVP).

A respondent has the right to be informed that an internal investigation will be or has been commenced. In some cases, steps to inform a respondent should be taken immediately if interim measures are required. Generally, a respondent should be advised that there have been allegations made that they have engaged in certain conduct, that an investigator has been retained or will be retained, and, if applicable, any interim measures that will be put into place. Respondents should also be advised that they should keep this matter confidential (but may share information with their spouse or legal counsel or as may be required at law) and that they are prohibited from engaging in reprisals against anyone else who may be involved in the investigation.

For federally regulated employers, the WHVP provides that respondents must be informed that they have been named as a respondent, advised of the manner in which the workplace violence and harassment policy is accessed, each step of the resolution process, and that they may be represented during the resolution process. There is no prescribed notice period but this information must be provided on the first occasion that an employer contacts a respondent.

Once an employer or investigator has particulars of the nature of the allegations, then the respondent must be provided with sufficient particulars of the nature of the allegations prior to being asked to respond to them in a workplace investigation.

In Ontario, where a workplace investigation involves potential abuse or neglect in relation to a minor child, the employer has a legal duty to report it to the Children’s Aid Society under Section 125 of the Child, Youth and Family Services Act, 2017. There are provisions that provide for similar legal duties across all the provinces and territories, however the authorities that must be notified differ depending on the province or territory.

If there is an incident of workplace violence or if workplace violence is likely to occur, employers should request immediate assistance from authorities. All employers (whether provincially or federally regulated) are required to have policies in place setting out measures and procedures around reporting and managing workplace violence and domestic violence, many of which will require an employer to make reports to authorities. This will generally be set out in a workplace harassment and violence prevention policy or health and safety policy. The nature of the policies will differ based on applicable legislative requirements.

As will be further discussed in 6.6 Communications to Authorities, investigations that allege to involve criminal conduct may also require an employer to report such conduct to the police. The question of whether employers must report the investigation is context-specific and will depend on various factors including the seriousness of the allegations as well as whether there is any risk of harm to the employer, other employees or the public.

Employers or investigators may ask individuals involved in an HR internal investigation to sign confidentiality agreements to protect sensitive information and to preserve the integrity of the investigation process. Confidentiality agreements should not prevent individuals from reporting any illegal activities, harassment or workplace misconduct to applicable authorities.

Confidentiality agreements can help ensure that the investigator is able to gather accurate information and minimise the risk of interference in the investigative process. These agreements may also encourage participation and honesty in the course of investigation. Absent a confidentiality agreement or specific direction to the participant that the information obtained or provided during the investigation should be kept confidential, there are no specific requirements that a participant maintain confidentiality. Where confidentiality is breached, an employer may be required to impose disciplinary measures up to and including termination of employment depending on the nature of the breach.

There are also additional confidentiality requirements for employers imposed by applicable statutes that provide for confidentiality obligations towards those involved in an incident of workplace violence or harassment. 

For federally regulated employers, a preliminary investigation is typically done pursuant to the WHVP during the “negotiated resolution” phase. Employers are required to make every reasonable effort to resolve the occurrence no later than 45 days after notice of the occurrence. The negotiated resolution phase also functions as a preliminary screening mechanism, where the principal party and the employer review the notice describing the incident and may jointly determine that the notice does not describe an action, course of conduct or comment that constitutes harassment and violence.

In some cases, where there is no legal obligation or statutory requirement to conduct an investigation, an employer may wish to do a preliminary investigation or screen complaints before commencing a full internal investigation. Ultimately, HR investigations must meet the specific statutory requirements imposed by applicable legislation and be compliant with any applicable policies. In some cases, a preliminary investigation may be sufficient to fulfil both the legal and policy requirements; however, where the subject matter of the investigation is serious in nature, complex or likely to be contested, a full HR internal investigation is likely to be more appropriate.

While there is no “one-size-fits-all” approach to workplace investigations and who to interview, a workplace investigator is well advised to interview individuals with relevant information, which often includes the complainant (the person who has raised the concern or the subject of the misconduct), the respondent(s) (the person(s) alleged to have engaged in the alleged behaviour) and witnesses (individuals who have relevant information). Principles of procedural fairness that govern investigation (and in some cases, applicable legislation) require investigators to interview the complainant and respondent at the very least. Whether an individual should be interviewed or not is often a judgement call to be made by the workplace investigator, keeping in mind that they want to conduct a neutral, fair and thorough investigation.

Ideally, an organisation’s policy will set out that employees are expected to participate in any workplace investigation, however, it can be tricky when an individual refuses to participate. It can be helpful to explain to someone who is reluctant or refusing to participate why their participation is important and, perhaps, the impact the investigation may have on the workplace or employees (both current and future employees). If, however, someone refuses to participate, and particularly if it is the respondent, a workplace investigator is well advised to inform the person that they will continue with the workplace investigation and will have to make findings without the benefit of their information.

Workplace investigation interviews can be done in person, by videoconference, by telephone or written questions. That said, in person or videoconference interviews are often preferable as it can sometimes be easier to build trust with an interviewee as well as assess an individual’s credibility when the interview is done in person or by videoconference.

There is no rule per se on the number of workplace investigators (ie, interviewers) that should be assigned to any workplace investigation. Who conducts the investigation (and how many investigators or interviewers there are) is generally determined by the workplace policy, the collective agreement (if applicable) or the circumstances which lead to the investigation. For example, you may want two investigators if the number of potential witnesses is likely to be “high”. It is relatively unusual for more than two investigators to be assigned.

The primary objective of workplace investigation interviews is to obtain the best evidence from the person being interviewed. As such, the workplace investigator will want to give some thought as to how to create an environment in which the interviewee will feel comfortable and, in turn, provide the best and most comprehensive evidence. There may be circumstances in which an interviewee (or an investigator) may ask for a neutral third party to attend the meeting, for example, an interpreter or someone to assist the interviewee as part of an accommodation measure.

On occasion, an interviewee will ask to bring a friend, family member or other support person to their interview. Subject to any applicable workplace policy or collective agreement, whether a support person is permitted or not is generally a decision made by the investigator. If the investigator is concerned that the support person may intervene in the course of the meeting, attempt to provide evidence on behalf of the interviewee and/or the person being interviewed may alter their evidence as a result of the presence of the support person (ie, a spouse attending in a sexual harassment case), then the investigator may want to suggest the support person can accompany the person to the interview but not be with the interviewee during the meeting. If a support person is permitted to attend, the investigator should make sure that the interviewee is providing the evidence, and not the support person. The investigator will also want to consider, before permitting the support person to attend the interview, whether they could be a potential witness in the investigation. Neither an actual witness nor a potential witness should be permitted to attend as a “support person” as it could compromise the integrity of the workplace investigation.

In an internal HR workplace investigation, a party does not generally have the right to legal counsel present during their interview with the investigator. This, of course, is subject to any applicable workplace policies and rights provided for in such policies. As previously mentioned, a primary goal for a workplace investigator is to obtain the best evidence from the interviewee. Legal counsel’s attendance (particularly ones who are knowledgeable about workplace investigations) can often facilitate the investigation process. If, however, counsel that attends an interview attempts to provide evidence on behalf of their client, regularly interrupts and/or intervenes in the meeting, makes “submissions” or is otherwise obstructionist, the investigator should remind counsel that it is in their client’s best interests to permit them to provide their account of what happened uninterrupted and in their own words.

An interview for a workplace investigation generally consists of three parts: (i) an introduction; (ii) the fact gathering; and (iii) the conclusion. While different investigators may have different approaches, the introduction portion of the interview often involves the investigator:

• identifying themselves and summarising their role;
• explaining the mandate and answering any questions the interviewee may have about the investigation process;
• reminding the interviewee of the importance of being truthful and maintaining confidentiality with respect to the investigation process, the subject matter(s) discussed, the questions asked and information provided; and
• discussing what protections may be available to the interviewee with respect to any reprisals or retaliation.

If an interviewee stops an interview for any reason, the workplace investigator should make a note of the time the meeting was stopped, the reasons the meeting was stopped and what happened as a result. It is sometimes hard to know while an investigation is ongoing what information may ultimately become relevant. For example, a respondent who has been found to have engaged in workplace harassment, may assert they provided incomplete or incorrect evidence during their meeting with the investigator, which they described as “very long, and without any breaks”, when, in fact, the investigator’s notes reflect that the meeting with the respondent was a total of 90 minutes and included one washroom break and two additional breaks so that the respondent could confer with counsel. 

Different investigators use different methods of collecting verbal evidence from an interviewee; some options include: handwritten notes, typed notes, audio recordings and signed statements. No matter what option is used, the primary objective is to ensure the accuracy of that evidence. When taking notes, the investigator should make notes of not only the information provided by the interviewee but also the questions asked. An investigator should document the evidence using the words of the interviewee and should not paraphrase. Asking interviewees to “sign off” on the accuracy of a summary of their interview or the notes of the investigator is a good way of enhancing the reliability of the notes. Having an interviewee approve any notes also avoids potential disputes at a later date as to what was said during the interview.

Workplace investigation interviews can be recorded. However, the investigator must tell the party being interviewed it will be audio recorded. While recording an interview may be the best way to ensure the accuracy of the information collected, it can sometimes have a chilling effect on some individuals and/or the individual may refuse to be recorded. In such circumstances, the investigator may wish to have to another method of recording the evidence available.

In addition to obtaining evidence from interviews, a workplace investigator should consider obtaining any other types of evidence (such as emails, documents, text messages, photos, video, etc) that may be relevant or necessary to conducting their investigation. While such additional evidence may supplement, corroborate and/or contradict evidence provided by interviewees, such evidence will often assist a workplace investigator to assess the credibility of those interviewed and ultimately make findings and conclusions.

Employers should take actions to protect all parties involved in an investigation, including the complainant, reporter and/or respondent.

In every province and federally, human rights legislation prohibits reprisals against employees that make a complaint of discrimination, harassment or seek to enforce their human rights protections (see for example, Section 8 of the Ontario Human Rights Code). A reprisal is any negative consequence for taking part in a complaint process. Similar protections exist for employees that make complaints or seek to enforce their rights under occupational health and safety legislation (see for example, Section 50 of the Ontario Occupational Health and Safety Act). Employers should take steps to ensure that an employee, whether a complainant, reporter or witness, is free from any reprisals. If an employee is subject to adverse treatment (for example, their employment is terminated) as a result of making a complaint or due to an employer’s failure to take measures to protect the employee from a reprisal, the employee can seek a number of remedies including reinstatement or monetary damages.

It may also be advisable to implement interim measures during the course of an investigation. Interim measures may include: remote work; increased monitoring or security; transfer(s) of parties to other departments or offices; changes to reporting structures; and/or imposition of administrative leaves or suspensions (often with pay). If a leave of absence is necessary for either a reporter, complainant or respondent, the leave should be an “administrative leave”, rather than a “suspension”, where the investigation is ongoing and the allegations are unproven.

The appropriateness of removing the reporter or complainant from the workplace will depend on the nature of the complaint and factual circumstances.

Employers should also take actions to protect the respondent. As noted in 2.4 Confidentiality Agreements and NDAs, employers have confidentiality obligations towards those involved in an incident of workplace violence or harassment. The confidentiality obligations towards the respondent may differ slightly based on each jurisdiction. In any event, it is generally good practice to maintain confidentiality over the name of the respondent and the circumstances (subject to any requirements to conduct a fair investigation) during the course of the investigation for the reasons noted above.

Some health and safety legislation explicitly prohibits the disclosure of a respondent’s name (as well as the names of complainants and witnesses) except where that disclosure is required by law or necessary to investigate the complaint, take corrective action, advise the parties involved of the results of the investigation or advise the parties involved of the corrective action taken (see for example, Alberta’s Occupational Health and Safety Code, Section 390.5(c); Manitoba’s Workplace Safety and Health Regulation, Section 10.2(1)(d)).

Generally, an employer should not take any disciplinary measures against a respondent prior to concluding an investigation unless there are exceptional circumstances. If an employer wishes to remove a respondent from the workplace, they should place the respondent on an “administrative leave”, which is non-disciplinary in nature. Suspending a respondent without pay at an early stage of an investigation can attract liability and should only be reserved for exceptional circumstances and after careful consideration (Filice v Complex Services Inc, 2018 ONCA 625 paragraphs 38–39). A suspension without pay that cannot be justified or is unreasonable can result in a finding that the suspension was a breach of the employment contract and amounted to constructive dismissal (Filice v Complex Services Inc, 2018 ONCA 625 paragraphs 38-39).

In every jurisdiction, employers are legally obligated to take reasonable steps to protect the safety, health and well-being of their employees under occupational health and safety legislation and human rights legislation. Employers who fail to protect their employees (whether in the course of an investigation or otherwise) may be in breach of that legislation as well as potential common law obligations to employees. If the circumstances pose a risk to employees, employers should implement appropriate interim measures, which, as noted in 4.1 Protection of the Reporter, could include remote work and/or changing work hours or shifts.

In order to minimise the impact of a workplace investigation on the parties and the workplace generally, and as required by law, the investigator should conduct the investigation in a way that is as confidential as possible (without compromising the integrity of the investigation or procedural fairness owed to the respondent(s)).

It is widely agreed upon that the respondent in a workplace investigation should be provided with particulars of the allegations before being asked to respond to them. A respondent should be provided with a sufficient amount of particularity such that they can meaningfully respond to the allegations.

In addition to providing particulars to the respondent in advance of meeting with them, an employer can prescribe additional internal procedures such as imposing timelines, or opportunities to review a draft of the investigation report before finalising, for example. Given the myriad of issues that can lead to a workplace investigation, and as this is an evolving area of law, an employer may wish to reflect on what additional internal procedures or requirements they may wish to impose, if any, as once such procedures are in place they can be difficult to remove and, if not followed, can result in a workplace investigation being challenged for failing to follow its internal procedure.

The complainant (the person making the allegations or complaint) has the onus of proving the comments or conduct occurred.

The standard of proof in a workplace investigation is generally on a “balance of probabilities”; also known as the “civil standard”. In other words, the workplace investigator must decide whether it is more likely than not that the comment or conduct occurred.

Once an investigator has collected all of the evidence related to the matters being investigated, the evidence must be reviewed, considered and analysed. The investigator will often assess the credibility of those interviewed and make factual findings and conclusions. Depending on the mandate, the workplace investigator may also be asked to make recommendations for the organisation to consider.

If a complaint is abandoned, an organisation may still wish to proceed with the investigation, particularly if there are any concerns about systemic issues in the workplace.

When a workplace investigation has come to an end, it is good practice for the employer to advise those who participated in the investigation that it has concluded. In some jurisdictions in Canada, the law requires that the worker who allegedly experienced harassment and the worker who was alleged to have engaged in the harassment to be informed of the results of the investigation and any corrective action that has been or will be taken as a result of the investigation.

At the end of a workplace investigation, there is often a report. While a “report” can be verbal, it is generally recommended that a workplace investigation report be written. A written report provides a record of the process followed, the evidence collected and analysed, the findings of fact and the conclusions made (which can be referred to at a later date if needed).

Written reports can take different forms. For example, a “written report” in a relatively straightforward investigation may be an email from the internal investigator to whomever tasked the investigator to conduct the investigation. On the other side of the spectrum, a written report can be lengthy and include appendices setting out important documents or other evidence referenced in the report. There is no “one way” to draft an investigation report and it will often depend on the mandate, the subject matter and complexity of the allegations. However, well written reports are generally ones that can be read by a third party who then understands what the investigator was tasked to look into, what was investigated and what was ultimately determined to have occurred. Written reports, while not required, often contain the following information: an introduction which provides some background as to what lead to the investigation; information regarding the mandate of the investigator; the parties involved and process followed; an analysis of the evidence and assessment of credibility; an application of the evidence to the workplace policies and/or legal analysis (depending on the mandate – ie, whether an allegation is substantiated or not as compared to whether the allegations, if substantiated amount to a violation of a workplace policy or statute); findings of fact; a conclusion and, if part of the mandate, recommendations. Unless specifically requested, recommendations are not usually included in a workplace investigation report.

As a matter of procedural fairness, parties ought to be advised of the outcome of an investigation following its conclusion. However, this does not necessarily mean that parties have a right to access written reports in their entirety. Several jurisdictions require that a complainant be informed in writing of the results of an investigation and any corrective action that has been or will be taken (see – eg, Section 32.0.7(1)(b) of Ontario’s Occupational Health and Safety Act; Section 390.6 of Alberta’s Occupational Health and Safety Code). The only legislation that requires disclosure of an investigator’s report is for federally regulated employers. The WVHP Regulations specifically require an employer to provide a copy of the report to the complainant, respondent and other designated parties (see Section 30(1)).

A recent case from the Ontario Labour Relations Board (OLRB), Shannon Horner v Stelco Inc. Lake Erie, 2024 CanLII 16448, provides additional guidance on the statutory interpretation of Section 32.0.7 of Ontario’s Occupational Health and Safety Act. There, the OLRB found that the employer’s closure letter sent to the complainant was insufficient because it did not inform the complainant of which named respondents were found to have engaged in harassment and it did not inform her of the corrective action that had or would be taken. The ORLB also confirmed that Section 32.0.7(1)(b) does not require employers to provide the report setting out all of the findings of fact nor does it require employers to disclose the specific acts of harassment that were found to have occurred (paragraph 53).

Recently, the Ontario Human Rights Tribunal also found that employers must communicate the findings of the investigation and steps taken by the employer in response to the findings to all complaints. These form part of the employer’s duties to reasonably investigate complaints under the Human Rights Code (Bidwai v Ontario Teachers’ Pension Plan Board, 2024 HRTO 1092).

As noted in 2.3 Communication to Authorities, investigations that allege criminal conduct may also require an employer to report such conduct to the police. If the investigation uncovers evidence of criminal conduct (eg, assault, sexual harassment involving physical threats, theft, fraud), the employer may have a duty to report the criminal conduct to the police or relevant law enforcement agencies. It may also be required to do so under applicable workplace policies. In such cases, employers should consult with criminal counsel.

Reporting requirements to other statutory authorities differ based on jurisdiction, the nature of the misconduct, and the employees involved. For example, in Alberta, if an incident of harassment or violence results in the death of an employee (or worker), or if there is reason to believe the employee has been or will be admitted to a hospital beyond treatment in an emergency room or urgent care facility, the employer is required to report the matter to a Director and others under Section 391.1 of the Occupational Health and Safety Code. Other provinces have similar requirements under occupational health and safety legislation where an employee suffers a serious injury or dies because of a violent incident in the workplace. Federally regulated employers must report all occurrences of harassment and violence to the Minister of Labour under the WHVP in their annual report (see Sections 35–36).

Additionally, in highly regulated industries like banking, finance and insurance, findings of certain misconduct (ie, fraud or embezzlement) in an internal investigation report may result in a positive obligation to report the results to regulatory bodies such as a securities commission or the appropriate provincial authority that oversees and regulates insurance and related services. Similarly, if the subject of the investigation is a regulated professional (for example, a lawyer, doctor or accountant), the findings may need to be reported to the relevant regulatory body in the province (for example, the law society, the college of physicians and surgeons).

In some jurisdictions, employers that have undertaken investigations into allegations of harassment and violence may also be required to advise workplace committees responsible for health and safety on the conclusion and provide additional information in respect of the incident(s) and the outcome of the investigation. The nature and extent of the information that must be provided varies depending on the provincial legislation. For federally regulated employers, the investigator must provide an anonymised copy of the report containing their conclusions and recommendations to the workplace health and safety committee.

If allegations are substantiated, an employer can take various disciplinary measures depending on the severity of the misconduct, ranging from verbal or written warnings, mandatory training, suspension (with or without pay), demotion, or reassignment of duties, to termination (with or without cause). For severe misconduct such as fraud, sexual harassment, or violence, termination for common law just cause (or wilful misconduct) may be appropriate, while termination without cause may be used if the threshold for common law just cause is not met or the misconduct has been condoned by the employer. In deciding the appropriate measure, the employer should consider their own policies and what, if any, requirements are imposed by those policies when deciding on appropriate disciplinary measures.        

An employer may also wish to adopt other measures that are non-disciplinary following the outcome of an investigation. Measures should focus on enhancing workplace culture and mitigate the risk of future complaints or investigations.

For example, workplace resolution mechanisms may be appropriate where there is ongoing conflict or interpersonal issues among a group of workers, regardless of whether the allegations are substantiated following an investigation. In other situations, employees and managers may benefit from additional coaching on a particular issue (for example, cultural sensitivity training, conflict-resolution training or training on performance management) following the outcome of an investigation even if the allegations are unsubstantiated. Employers may also adjust workflows or reassign roles to minimise interactions between individuals involved, introduce flexible work arrangements such as remote work, or enhance workplace monitoring and oversight. Additionally, offering access to employee assistance programmes or bringing in additional counselling and support may be advisable as part of a workplace restoration process.

The investigator is primarily responsible for collecting data for the purpose of the investigation. Where appropriate, the investigator may wish to access, collect and use personal data from an employer for the purpose of an internal investigation.

Various workplace privacy laws may apply to the collection of personal data belonging to employees, depending on whether the employer is in the private sector or public sector, federally or provincially regulated, unionised or non-unionised.

Canadian law generally permits the collection of personal data if the collection of such data is reasonable. To demonstrate that collection is reasonable, at the very least, an employer should notify the employee of: the fact that it has undertaken employee monitoring or is collective data, the purpose in collecting the data and the manner in which the data is collected. Many employers have policies in respect of the collection of personal data and use of such data.

In some cases, it may not be feasible to advise an employee that their personal data is being collected if it is being done for the specific purpose of the investigation. Some provincial and federal privacy legislation contains explicit exceptions to notice requirements where monitoring is reasonable for the purpose of investigating a breach of an express or implied term of an employment agreement or a violation of a federal or provincial law.

In Canada, access to personal data collected during an HR internal investigation is governed by privacy laws, such as PIPEDA (federally) and provincial legislation in some provinces (eg, BC’s PIPA, Alberta’s PIPA, Quebec’s Act respecting the Protection of Personal Information in the Private Sector). As noted in 7.1 Collecting Personal Data, employers may wish to obtain meaningful consent from the employee for the collection, use and disclosure of their personal data. In unionised workplaces, express and implied employee privacy rights in collective agreements may also set out specific rules governing the collection, use and disclosure of personal data that apply in the context of workplace investigations. For unionised employers, investigators should ensure that they comply with any requirements imposed in the collective agreement regarding the collection, use and disclosure of personal data.

A party may have a limited right to access personal information about themselves that is collected in an HR internal investigation depending on the applicable legislation or internal policies of the particular employer. However, as a general rule, none of the parties have a right to access records related to the commencement, investigation and disposition of a workplace complaint unless there are specific statutory requirements that provide for disclosure of the report or of certain other information (see above).

There are a number of federal and provincial whistle-blower protections available to individuals who report workplace misconduct. Some examples follow.

• Federal and provincial public servants are covered by specific statutes that provide protections and mechanisms for public servants to disclose potential wrongdoing by other current or former public servants. The legislation protects whistle-blowers from reprisals for sharing information on wrongdoing.
• All of the securities commissions have whistle-blower programmes that protect employees who report securities violations including confidentiality protections, anonymous submissions, and anti-reprisal provisions. The commissions also offer financial awards to qualified whistle-blowers who report security violations.
• The competition bureau and Competition Act also provide for specific whistle-blower protections.
• A number of other industries are covered by legislation that provides for explicit whistle-blower protections (see for example, the banking sector).

Additionally, many workplaces provide for their own internal whistle-blowing policies and will often outline specific protections for whistle-blowers.

Both human rights and occupational health and safety legislation contain specific protections against sexual harassment. Under human rights legislation, sexual harassment is prohibited on the basis that it amounts to discrimination based on sex and workplace harassment. Under occupational health and safety legislation, the definition varies across provinces and federally. Some provinces provide for specific definitions of “workplace sexual harassment” (see for example, Ontario, Nova Scotia) and some provinces define harassment in a manner that includes “sexual harassment” or actions that are of a “sexual nature” (see for example, federally regulated employers, Alberta, Saskatchewan). In general, many of these definitions provide that “sexual harassment” is any conduct, comment, or action of a sexual nature that is known or ought reasonably be known to be unwelcome.

Individuals who are subjected to sexual harassment are protected under human rights and occupational health and safety legislation. Protections include prohibitions on reprisals, confidentiality obligations, access to remedies such as compensation for breaches of human rights legislation, rights of reinstatement (if applicable) and other civil remedies.

In Canada, human rights legislation at both federal and provincial levels prohibits discrimination and harassment based on protected grounds. Human rights legislation at both the provincial and federal levels states that individuals have a right to equal treatment with respect to goods, services and facilities without discrimination based on specific protected grounds outlined in that legislation. The protected grounds may vary depending on the specific jurisdiction, but protected grounds that are recognised in every jurisdiction include: race, nationality or ethnic origin, colour, creed, religion, age, sex or gender, sexual orientation, marital status, family status, disability and gender identity. Some additional protected grounds that are not recognised in every jurisdiction include record of offences or conviction, genetic characteristics and political belief or activity.

These laws apply to a variety of areas, including workplaces, housing and services. Employers and service providers are legally obligated to ensure environments are free from discrimination and harassment and to accommodate individuals’ needs up to the point of undue hardship. Individuals can file complaints with employers and human rights commissions or tribunals, which may result in investigations (as required under the legislation). Protections include prohibitions on reprisals and access to remedies such as compensation for breaches of human rights legislation, rights of reinstatement (if applicable) and, if appropriate, civil remedies.

In general, bullying and mobbing would be captured under existing definitions of workplace harassment and violence set out in 8.2 Sexual Harassment and/or Violence and 8.3 Other Forms of Discrimination and/or Harassment. There are no additional specific protections against bullying or mobbing in particular. Where mobbing has occurred, there is the additional possibility of an investigator or court characterising the harassment as creating a poisoned work environment. A poisoned work environment arises where harassment, bullying or discrimination in a workplace creates a hostile, negative, intolerable workplace for employees. It may arise from a serious, stand-alone incident or from persistent and repeated wrongful behaviour.

As discussed in 6.6 Communications to Authorities, in situations where a workplace issue involves potential criminal behaviour such as fraud, theft, workplace violence or sexual assault, an employer may need to consider whether to report the allegations to the police or other authorities.

If the police commence an investigation, an employer will need to determine if an internal investigation should still be continued or if it should defer completing its investigation pending any determinations by the police. If both proceed concurrently, there can be the risk of inconsistent findings between the two investigations, which could impact an employer’s ability to rely on the findings reached in its own investigation. However, in some circumstances, continuing with an internal investigation may be preferable especially where there is a separate, statutory obligation to carry out an investigation. Additionally, the burden of proof is much higher in criminal cases, so internal investigations might reach a different outcome that can still form the basis for a termination, civil lawsuit or other forms of discipline.

There are no special procedures that an employer must follow in cases that are multi-jurisdictional in nature (whether across multiple provinces or countries) and there are no restrictions on foreign employers carrying out HR internal investigations.