The Ontario Labour Relations Board (“Board”) has now confirmed that employers have broad discretion in choosing workplace investigators to investigate complaints under the Occupational Health and Safety Act (“OHSA”). In Erin MacKenzie v Orkestra SCS Inc., the applicant employee argued that the workplace investigators appointed by the employer to investigate her harassment complaint were not qualified for the job. The Board dismissed the application and found that the employee was required to let the investigation run its course before alleging the investigators were inadequate.
The Board’s decision demonstrates that Ontario employers have broad discretion in how they choose workplace investigators. Employees are generally required to participate in the investigation, even if they believe the investigator is inadequate.
However, employers should still follow best practices in choosing workplace investigators to reduce the risk of an employee raising a complaint after the investigation concludes. In this regard, while the OHSA does not require any particular qualifications, employers should ensure workplace investigators have the appropriate knowledge and experience to conduct a thorough investigation in the circumstances. Investigators should also be independent. Employers should consider whether any pre-existing relationships could affect the investigator’s ability to conduct an impartial investigation. In some cases, a third party investigator may be most appropriate.