Workplace Investigations: A Primer for Employers

Employers are expected to conduct timely and impartial investigations when allegations of harassment, discrimination, or other workplace misconduct arise. In Alberta, these obligations are rooted in the Occupational Health and Safety Act, the Alberta Human Rights Act, and the employer’s common law duty of care. Understanding the investigation process is essential for all organizations, particularly those without dedicated human resources expertise, and becomes especially important when external support may be necessary.

What are the Legal Obligations in Alberta?

Under section 390 of Alberta’s Occupational Health and Safety Code, employers must develop a violence and harassment prevention plan that includes procedures for conducting investigations. These investigations must preserve confidentiality where possible and must be carried out in a manner that protects the safety and dignity of all parties.

The Occupational Health and Safety Act also requires employers to respond to any workplace hazard, which includes harassment and violence. Additionally, the Alberta Human Rights Act expects employers to investigate complaints of discrimination. Failing to investigate a complaint can expose an employer to liability.

Beyond legislation, the common law imposes a duty on employers to take reasonable steps to protect employees from foreseeable harm. In many cases, this duty can only be fulfilled through a structured, fair investigation.

When To Retain an External Investigator?

While many employers can handle lower-level workplace disputes internally, certain situations call for external investigators, including:

• Complaints involving bullying, harassment, discrimination, or workplace violence

• Allegations against senior management or human resources staff

• Whistleblower complaints or breaches of code of conduct

• Conflicts of interest or financial misconduct

• Systemic or repeated policy violations

External investigators bring a level of neutrality and legal awareness that is especially important when an employer may be considering termination for just cause. Their involvement can also strengthen employee trust and reduce the risk of legal challenge.

What Does The Investigation Process Involve?

Most workplace investigations follow a structured and predictable process:

1. Triage and Early Review

Once the investigator receives a complaint, they assess whether a formal investigation is necessary. At this stage, they identify any urgent safety concerns, decide on interim measures, and take steps to preserve relevant evidence.

2. Defining the Mandate

The investigator sets out the scope and purpose of the investigation. This includes determining who will be interviewed, whether the process will be in-person or virtual, and what types of evidence will be reviewed.

3. Interviews

The complainant is usually interviewed first, followed by the respondent and then witnesses. Interviews are designed to gather facts and test credibility. Follow-up interviews may be conducted if new issues arise or clarification is needed.

4. Evidence Collection

In addition to interviews, investigators review emails, text messages, photographs, calendar records, and other documentation. All evidence is evaluated for relevance and reliability.

5. Findings and Report

Once the investigation is complete, the investigator prepares a written report. This document includes a summary of the evidence, assessments of credibility, and findings based on the balance of probabilities. Depending on the mandate, the report may also include recommendations or policy guidance.

What Do Courts and Arbitrators Expect from Workplace Investigators?

There is no clear legal standard that employers must follow when conducting investigations. However, Canadian courts have made it clear that investigations must be fair, neutral, and well-documented. Employers who fail to meet these expectations may face legal consequences even if their intentions were appropriate.

In Elgert v Home Hardware Stores Ltd., 2011 ABCA 112, the Alberta Court of Appeal made clear that courts will scrutinize the fairness and thoroughness of a workplace investigation. Although workplace investigations are not held to the same standard as court or tribunal proceedings, investigators must show that they approached the process with an open mind and made reasonable efforts to gather and assess the relevant facts.

Why Does Legal Expertise Matter?

Legally trained investigators bring value by understanding how to assess credibility, apply procedural fairness and meet evidentiary expectations. They are also skilled at writing reports that can withstand legal review. This is particularly important in complex or high-risk matters involving multiple legal obligations or potential litigation.

How Can Employers Be Proactive?

Employers should not wait for a complaint to arise before preparing for the investigation process. To prepare for potential complaints and ensure compliance with legal obligations, employers should take proactive steps to strengthen their investigation readiness. These steps include:

• Reviewing and updating workplace policies related to violence, harassment, and discrimination

• Training supervisors on how to respond to complaints appropriately

• Establishing a list of trusted external investigators in advance

• Ensuring systems are in place to preserve evidence

Workplace investigations are not just a compliance tool. They are an important part of building a healthy, respectful and safe work culture. For employers without sophisticated internal capacity, knowing when and how to bring in professional help can make all the difference.

Cave Law prioritizes impartiality, procedural fairness, sensitivity and discretion when working with employers on independent workplace investigations. Learn more about our practice at www.cavelaw.ca.