Workplace investigations often sit on a delicate fault line. On one side lies the risk of “fishing” — broad, unfocused investigations, often likened to “witch hunts.” On the other side lies the opposite risk — employers failing to investigate misconduct at all. As organizations have become increasingly aware of their obligations to address workplace misconduct, much of the focus has been on the consequences of failing to investigate. However, it is important to pay attention to the opposite risk — investigating without sufficient particulars or a clearly defined scope.
Two recent Canadian decisions, Northwest Territories v. Union of Northern Workers, (“NWT”), and Metrolinx v. Amalgamated Transit Union, Local 1587, (“Metrolinx”), illustrate this tension and ultimately address the same question — what information is required before an employer may or must investigate workplace misconduct? NWT illustrates the dangers of launching an investigation based on vague allegations, while Metrolinx confirms that a formal complaint is not required where specific evidence of misconduct comes to an employer’s attention. The challenge is determining whether there is a reasonable basis to trigger an investigation and, once triggered, how far the mandate should extend.
This blog provides a brief overview and analysis of the cases and considers practical takeaways for employers and investigators.
The NWT case involved a nurse in a small community, who oversaw health services. Those in the community raised formal complaints against her, involving allegations of racism and other offences. The complainants’ allegations were vague and lacked clear incidents or specific misconduct details. Nevertheless, the employer suspended her and hired a law firm to investigate. The investigator interviewed 27 witnesses, seemingly to understand whether there was any “meat” to the concerns. Ultimately, all concerns were unsubstantiated, and the nurse brought a grievance against an employer. The arbitrator found that the investigation was unreasonable and constituted an abuse of power, and stated that the lack of specificity in the complaints ought to have been resolved before investigating, instead of proceeding based on broad allegations. This error resulted in the grievor (the respondent nurse) not knowing the case to meet. The arbitrator also criticized the breadth of the investigation and raised concerns about confidentiality. Further, the public nature of the investigation significantly impacted the grievor, and she moved due to gossip about her in the community.
While the NWT case illustrates the risk of investigating without sufficient particulars, Metrolinx addresses the opposite concern — when employers may be obligated to investigate even in the absence of a formal complaint. In this case, five employees exchanged sexist messages about a female colleague in a private WhatsApp group chat. The subject of the comments received screenshots of the messages and reported the issue — however, she did not want to file a complaint or participate in any investigation. Despite her position, the employer launched an investigation and ultimately imposed discipline. The employees challenged the investigation, arguing in part that there was no complaint, and the complainant did not cooperate. The Ontario Court of Appeal rejected their arguments and emphasized two principles:
The Court also rejected reasoning that if the complainant did not complain, it must not be serious or require investigation — these types of assumptions, the Court held, risk introducing stereotypes about how sexual harassment victims should behave. Ultimately, the investigation was found to be proper.
At first glance, these cases may appear to pull in opposite directions.
The reconciliation lies in understanding the trigger to investigate. These cases illustrate that the question is not whether a formal complaint exists, but whether the employer has sufficient evidence to justify an investigation. The key distinction in these cases is that:
Ultimately, fairness requires that respondents know the case they have to meet, which was a key flaw in the NWT investigation. Even where an employer acts in good faith, an investigation that lacks detailed concerns or exceeds its proper scope risks being criticized as procedurally unfair and causing harm to the parties.
Here are some key principles that we typically apply when conducting investigations, or when consulting with organizations on if, when, and how they should conduct procedurally sound investigations:
As the law evolves with respect to workplace investigations, it is not a simple exercise of “investigate everything” or “investigate nothing without a complaint.” Taken together, NWT and Metrolinx demonstrate the legal risks for failing to appreciate the nuances and exercise judgment about when an investigation is warranted and how it should be conducted. The legitimacy of an investigation depends on whether there is a reasonable trigger for investigation, and whether the scope of that investigation remains disciplined throughout.
