How Should an Employer Conduct a Workplace Investigation Federally?

Federal, Ontario, and Alberta investigation duties at a glance

Ontario’s duty comes from OHSA section 32.0.7, which requires an investigation “appropriate in the circumstances” for any incident or complaint of workplace harassment, generally completed within about 90 days unless there’s a compelling reason for delay, by someone who is not involved in the incident and not under the alleged harasser’s control. Once it’s done, the Ministry’s guide to the Act confirms both the complainant and the alleged harasser, if still employed, must be told in writing what was found and what corrective action follows, and the employer’s written harassment program has to be reviewed at least once a year.

Alberta folds the investigation into the mandatory violence and harassment prevention plan required under OHS Code Part 27, which must set out procedures for reporting, investigating, and documenting incidents, and must allow disclosure of otherwise confidential information where necessary to investigate, take corrective action, or tell the parties the outcome. Alberta.ca confirms the employer must then keep a written investigation report for at least two years and produce it to Alberta OHS on request.

Which law applies to your workplace

Whether the federal process applies turns on whether the Canada Labour Code covers the employer, not on where the head office happens to sit. That Code’s definition of the harm an investigation exists to address is broad: it covers any action, conduct, or comment, including of a sexual nature, that could reasonably be expected to cause offence, humiliation, or physical or psychological injury or illness. If the Canada Labour Code doesn’t apply to a given workplace, the employer instead follows Ontario’s Occupational Health and Safety Act or Alberta’s Occupational Health and Safety Code as summarized above; this site covers the Ontario-specific and Alberta-specific versions of this question separately, with the full step-by-step process for each province.

The federal investigation process, step by step

1. Try to resolve the complaint informally first. Under the Work Place Harassment and Violence Prevention Regulations, a formal investigation of an “occurrence” (the regulatory term for an incident or complaint of harassment or violence) is only required “if an occurrence is not resolved” through the negotiated-resolution and conciliation steps that come first.

2. The employee has to ask for it. Even after those earlier steps fail, an investigation must go ahead only if the principal party, meaning the employee who raised the complaint, requests it.

3. Both sides get formal notice. Before an investigation proceeds, section 26 of the regulations requires the employer or its designated recipient to notify both the principal party and the responding party (the person accused) that an investigation is to be carried out.

4. Choosing the investigator follows a set order. The parties can agree on who investigates; if there’s no agreement within 60 days of the notice, the employer must pick someone from the roster of people the Canadian Centre for Occupational Health and Safety identifies as qualified. Whoever is chosen, agreed or defaulted, must meet the knowledge, training, and experience requirements set out for investigators in the regulations.

5. A complaint doesn’t always lead to an investigation. If the responding party has already left the workplace by the time notice would be given, ESDC guidance confirms no investigation is required. Instead, the employer must review and update its workplace harassment and violence risk assessment.

6. Resolution beats investigation, right up until the report lands. If the parties settle the occurrence under the earlier resolution or conciliation steps before the investigator delivers a report, the investigation must be discontinued. Once the investigator has submitted their report, though, the matter can no longer be diverted back to conciliation.

Fatal incidents, records, and reporting deadlines

A death changes the timeline entirely. Under section 37(1) of the regulations, an occurrence that results in an employee’s death must be reported to the Head of Compliance and Enforcement within 24 hours of the employer becoming aware of it, separately from the investigation process described above.

Once an investigation is complete (or discontinued), the paperwork has a long shelf life. Government of Canada guidance confirms that all records of an occurrence, including the investigator’s report, police reports, and the employer’s annual reports to the Labour Program, must be kept for 10 years, kept readily available, and provided to the regulator when required.

Frequently asked questions

Answered in the frontmatter above.