Calgary Employment Lawyers Advising Employers on Workplace Investigations

Workplace investigations help Alberta employers respond fairly to serious complaints, determine what happened, and make informed decisions while reducing legal and workplace risk.

What Is a Workplace Investigation?

A workplace investigation is a structured process used to gather and assess information about a workplace complaint, incident or concern.

An investigation may involve:

• Interviewing the person who made the complaint;
• Interviewing the person responding to the allegations;
• Speaking with witnesses;
• Reviewing emails, messages, documents or other records;
• Assessing workplace policies;
• Considering relevant physical or electronic evidence;
• Making findings about what likely occurred; and
• Recommending or identifying appropriate next steps.

The purpose of an investigation is not simply to confirm an employer’s initial view. A fair investigation should gather relevant information from all sides and reach conclusions based on the evidence.

When Is a Workplace Investigation Required?

Not every workplace concern requires a formal investigation. Some minor misunderstandings or ordinary performance issues can be addressed through management discussions, coaching or informal resolution.

However, a more formal investigation may be required or appropriate where allegations involve:

• Workplace harassment;
• Workplace violence;
• Sexual harassment;
• Discrimination;
• Bullying;
• Threats or intimidation;
• Serious misconduct;
• Dishonesty or fraud;
• Theft;
• Conflicts of interest;
• Serious breaches of workplace policies;
• Retaliation or reprisal;
• Health and safety concerns; or
• Other conduct that could lead to significant discipline or termination.

The seriousness of the allegations, the number of people involved, and the potential legal consequences will affect how formal the investigation should be.

Are Investigations Required for Harassment and Violence Complaints?

Yes. Alberta occupational health and safety requirements treat workplace harassment and violence as workplace hazards. Employers must investigate incidents of harassment or violence and prepare a report outlining the circumstances and corrective action taken to prevent recurrence.

Employers must also maintain a violence and harassment prevention plan that includes procedures for:

• Reporting incidents or complaints;
• Investigating them; and
• Protecting the confidentiality of the people involved.

Investigation reports must generally be retained for at least two years after the incident.

What Rights Do Employees Have During a Workplace Investigation?

Employees involved in an investigation should be treated fairly. The precise process depends on the nature of the workplace and the allegations, but a fair investigation will generally provide the responding employee with enough information to understand the allegations and a meaningful opportunity to respond.

Employees should also expect that:

• The investigation will be conducted in good faith;
• Relevant evidence will be considered;
• Conclusions will not be predetermined;
• Personal information will be handled appropriately;
• The investigator will remain objective;
• Retaliation for making a protected complaint will not be tolerated; and
• The employer will take appropriate action based on the findings.

In unionized workplaces, the collective agreement may provide additional procedural rights.

What Are an Employer’s Obligations When a Complaint Is Made?

Employers should respond promptly when they receive a serious workplace complaint. Ignoring a complaint, delaying without a legitimate reason or reaching conclusions without investigating can create significant risk.

Why Should Employers Have a Workplace Investigation Procedure?

Employers should not wait until a serious complaint arises to decide how an investigation will work. A written investigation procedure can create a consistent framework for responding to complaints. For workplace harassment and violence, Alberta occupational health and safety requirements expressly require employers to have procedures addressing how complaints and incidents will be investigated.

Depending on the workplace, the procedure may address:

• How complaints can be made;
• Who receives complaints;
• What information a complaint should contain;
• How immediate safety concerns will be addressed;
• Who may conduct investigations;
• How conflicts of interest will be handled;
• How parties will be interviewed;
• How evidence will be collected;
• How confidentiality will be protected;
• How findings will be communicated;
• What records will be retained; and
• What corrective action may follow.

Why Is Consistency Important?

A written procedure helps employers avoid making the process up as they go.

Consistency can:

• Improve fairness;
• Reduce delays;
• Help managers understand their responsibilities;
• Improve employee confidence in the process;
• Protect evidence;
• Reduce inconsistent treatment; and
• Make the employer’s response easier to defend later.

However, procedures should still allow enough flexibility to respond appropriately to different types of complaints.

Who Should Conduct the Investigation?

The right investigator depends on the circumstances. An investigation may be conducted by:

• A human resources professional;
• A manager;
• A senior employee;
• An external workplace investigator;
• An employment lawyer; or
• Another qualified independent professional.

The investigator should have the skills and authority necessary to conduct a fair investigation.

When Can an Internal Investigator Be Appropriate?

An internal investigator may be appropriate where:

• The allegations are relatively straightforward;
• The investigator has no involvement in the events;
• The investigator has appropriate training;
• The parties are not senior executives;
• There are no significant conflicts of interest; and
• The employer can reasonably maintain confidence in the process.

Internal investigations can be efficient and cost-effective. However, convenience should not override fairness.

When Should an Employer Consider an External Investigator?

An external investigator may be appropriate where:

• The allegations are serious;
• Senior management is involved;
• The complaint concerns human resources personnel;
• There are multiple competing complaints;
• The investigation is particularly sensitive;
• Significant discipline or termination may result;
• Litigation or a regulatory complaint is reasonably anticipated;
• The employer lacks internal investigation expertise; or
• An internal investigator could reasonably be perceived as biased.

Independence can be especially important where confidence in the investigation process is likely to be challenged.

What Makes a Workplace Investigation Fair?

There is no single investigation procedure that applies to every workplace complaint. However, several principles are consistently important.

The Investigator Should Be Impartial

The investigator should approach the matter with an open mind.

They should not:

• Assume the complaint is true or false;
• Have a personal stake in the outcome;
• Have been involved in the events being investigated; or
• Reach conclusions before reviewing the evidence.

Actual bias and the appearance of bias can both undermine confidence in the investigation.

The Allegations Should Be Clearly Identified

The responding employee should generally understand the substance of the allegations. They need enough information to provide a meaningful response.

An employer should avoid vague statements such as: “There have been complaints about your behaviour.” Where appropriate, the employer should identify:

• The conduct alleged;
• The approximate date or timeframe;
• The relevant workplace context; and
• Other details necessary for the person to respond.

Both Sides Should Be Heard

The investigator should generally interview:

• The complainant;
• The respondent; and
• Relevant witnesses.

The investigator may need to return to witnesses for clarification as new information emerges.

Relevant Evidence Should Be Preserved and Reviewed

Evidence may include:

• Emails;
• Text messages;
• Teams or other workplace messages;
• Photographs;
• Video;
• Personnel records;
• Schedules;
• Policies;
• Previous complaints;
• Performance records; and
• Other relevant documents.

Employers should act quickly where electronic or physical evidence could be lost.

What Standard Is Used to Make Findings?

Workplace investigations are not criminal trials. The usual question is whether, based on the evidence, the alleged conduct more likely than not occurred. This is commonly described as the balance of probabilities.

Investigators should assess the evidence as a whole. Relevant considerations may include:

• Internal consistency;
• Consistency with documentary evidence;
• Corroborating evidence;
• Plausibility;
• Detail;
• Credibility;
• Timing; and
• Whether explanations changed during the investigation.

Credibility assessments should not be based simply on whether a witness appeared confident or nervous.

How Should Employers Handle Confidentiality?

Workplace investigations should be handled as confidentially as reasonably possible. This does not mean the employer can promise complete secrecy. Information may need to be shared in order to:

• Investigate the complaint;
• Give the responding employee a fair opportunity to respond;
• Take corrective action;
• Address health and safety concerns; or
• Communicate investigation results where required.

Alberta’s occupational health and safety rules require violence and harassment procedures to protect the confidentiality of the parties, subject to exceptions where disclosure is necessary to investigate, take corrective action, communicate results, or address threats of violence.

Employers should explain these limits at the beginning of the investigation.

Can Employers Tell Employees Not to Discuss the Investigation?

Employers should be cautious about imposing overly broad confidentiality requirements.

There may be legitimate reasons to ask participants not to:

• Coordinate evidence;
• Interfere with witnesses;
• Retaliate against participants;
• Circulate confidential documents; or
• Disrupt the investigation.

However, confidentiality directions should be reasonable and connected to a legitimate investigation purpose. A blanket direction that no employee may ever discuss the matter with anyone may create other legal or practical concerns, particularly in a unionized workplace.

What Should an Investigation Report Include?

The appropriate format depends on the investigation.

A report may include:

• Background;
• Scope of the investigation;
• Allegations investigated;
• Evidence considered;
• Relevant workplace policies;
• Findings of fact;
• Credibility assessments where necessary;
• Conclusions on each allegation; and
• Recommendations or corrective action, depending on the investigator’s mandate.

The report should distinguish clearly between:

• Allegations;
• Evidence;
• Findings; and
• Recommendations.

The investigator should not make conclusions outside the mandate they were given.

What Are the Potential Outcomes of a Workplace Investigation?

An investigation can lead to several outcomes. An allegation may be:

• Substantiated;
• Not substantiated;
• Partially substantiated; or
• In some cases, inconclusive because there is insufficient evidence to make a reliable finding.

A finding that an allegation is not substantiated does not necessarily mean the complaint was dishonest. It may simply mean there was not enough reliable evidence to establish that the conduct occurred.

What Corrective Action Can Follow an Investigation?

Where misconduct is established, the employer should determine an appropriate and proportionate response. Potential outcomes may include:

• Coaching;
• Training;
• Mediation or facilitated workplace discussions where appropriate;
• Changes to workplace processes;
• Policy revisions;
• Increased supervision;
• Discipline;
• Reassignment;
• Termination without cause;
• Termination for just cause in sufficiently serious circumstances; or
• Other corrective measures.

The appropriate response depends on factors such as:

• The seriousness of the conduct;
• Whether it was intentional;
• The employee’s position;
• Previous misconduct;
• Workplace policies;
• The impact on others;
• Whether the employee accepts responsibility; and
• Whether the employment relationship can continue.

A finding that misconduct occurred does not automatically establish just cause for dismissal. Employers should separately assess the appropriate employment consequence.

What If the Complaint Is Not Substantiated?

The employer should still consider whether additional action is appropriate.

For example, an investigation may reveal:

• Poor communication;
• Workplace conflict;
• Management problems;
• Inadequate policies;
• Training gaps;
• Unclear expectations; or
• Broader workplace culture concerns.

These issues may warrant attention even though the specific allegation was not substantiated. Employers should also be careful not to discipline an employee merely because their complaint could not be proven. An unsubstantiated complaint is not necessarily a bad-faith complaint.

What Should Employers Tell the Parties After the Investigation?

Employers should close the process clearly. The appropriate level of disclosure depends on the nature of the investigation and applicable legal requirements. Generally, the parties should be told that:

• The investigation is complete;
• Findings have been made;
• Appropriate action will be taken where required; and
• Retaliation will not be tolerated.

The employer does not need to disclose every detail of disciplinary action taken against another employee – doing so could have privacy law implications. For harassment and violence matters, Alberta’s OHS requirements permit disclosure necessary to inform the parties of the investigation results and corrective action to be taken.

Common Workplace Investigation Mistakes Employers Should Avoid

A poorly managed investigation can create more risk than the original complaint. Common mistakes include:

• Ignoring or minimizing complaints;
• Waiting too long to investigate;
• Failing to preserve evidence;
• Choosing an investigator with a conflict of interest;
• Promising complete confidentiality;
• Giving the respondent insufficient information to answer the allegations;
• Interviewing only the complainant;
• Asking leading or argumentative questions;
• Keeping inadequate notes;
• Reaching conclusions before gathering all relevant evidence;
• Treating an unsubstantiated complaint as a false complaint;
• Failing to consider retaliation concerns;
• Failing to follow the employer’s own procedure;
• Failing to document corrective action; and
• Assuming that a substantiated allegation automatically establishes just cause for termination.

What to Do Next When a Workplace Complaint Is Made

Alberta employers should consider the following steps:

• Assess immediate risk. Determine whether interim safety or workplace measures are required.
• Preserve evidence. Secure relevant emails, messages, records and other information.
• Review your policies. Determine what procedure applies.
• Decide whether a formal investigation is required.
• Choose the investigator carefully. Consider independence, expertise and potential conflicts.
• Define the mandate. Be clear about what the investigator is being asked to decide.
• Explain the process. Tell the parties what to expect and the limits of confidentiality.
• The investigator must give both sides a fair opportunity to be heard.
  • Document the evidence and findings.
• Keep information confidential where reasonably possible.
• Separate findings from discipline. Decide on the appropriate employment response only after the facts are established.
• Address broader workplace issues. Consider whether policies, training, or management practices need to change.
• Get legal advice early for serious allegations. This is particularly important where termination, human rights exposure, violence, senior employees, or significant litigation risk is involved.

Getz Collins and Associates: Advising Alberta Employers on Workplace Investigations

Workplace complaints can involve competing accounts, sensitive information, and significant consequences for everyone involved.

The employment lawyers at Getz Collins and Associates advise Alberta employers on investigation processes that are fair, practical and appropriate for the seriousness of the allegations.

We can assist employers with:

• Assessing whether an investigation is required;
• Developing workplace investigation procedures;
• Harassment and violence complaints;
• Human rights and discrimination complaints;
• Selecting an appropriate investigator;
• Defining investigation mandates;
• Conducting or advising on workplace investigations;
• Reviewing and analyzing investigation reports;
• Confidentiality and privacy issues;
• Determining appropriate disciplinary action;
• Assessing potential termination for just cause; and
• Responding to complaints involving senior employees or management.

Obtaining advice at the beginning of an investigation can help employers protect the integrity of the process, make better decisions and reduce the risk of further disputes.

From our Calgary office, Getz Collins and Associates advises employers throughout Alberta, including Calgary, Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar and surrounding communities.

Call 587-391-5600 or contact us online to schedule a consultation with an employment lawyer.