It usually arrives without warning. A meeting invitation from Human Resources with no agenda, or a vague letter saying that you are the subject of a complaint. Sometimes you are told to stay home while it is sorted out. Often you are not told much at all: not who complained, not exactly what you are said to have done, and not what happens if the allegations stick.
For the purposes of this blog, we are addressing non-unionized employees in Ontario who have been named as the respondent in a workplace investigation, meaning the person accused of some type of misconduct. Unionized employees have added rights under their collective agreement and, in the event of an investigation, should contact their union right away.
What the Law Actually Says
Here is something most employees do not expect: in most cases, your employer is not choosing to investigate you. It must. Section 32.0.7(1)(a) of Ontario’s Occupational Health and Safety Act (the “OHSA”) requires every employer to ensure that an investigation is conducted into incidents and complaints of workplace harassment, and that the investigation is “appropriate in the circumstances”. Workplace harassment is defined broadly in section 1(1), and now expressly covers harassment carried out “virtually through the use of information and communications technology”. Allegations arising from group chats, direct messages, and social media posts can all fall within the scope of section 1(1).
As a respondent, you do have real entitlements within that process. Ontario’s Ministry of Labour takes the position that an investigation which is “appropriate in the circumstances” requires the accused employee to be told the substance of the allegations (not a vague summary) and to be given a fair chance to answer them. Section 32.0.7(1)(b) of the OHSA then requires the employer to tell both the complainant and the accused employee, in writing, the results of the investigation and any corrective action that has been or will be taken.
Your employment contract, and any employer policy on investigations, may also give you additional rights.
You do not have a right to a perfect investigation. A flawed investigation is usually not, by itself, grounds for a stand-alone claim, but it can support claims for additional damages in a wrongful dismissal action (such as aggravated, mental-distress, and punitive damages). More importantly, an imperfect investigation often leaves the employer without the evidence required to prove just cause to terminate a respondent’s employment, and even where just cause is proven, that alone does not resolve the employer’s exposure: see Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (“Render”), discussed further below, where a thorough investigation ultimately supported just cause but still did not relieve the employer of the obligation to provide the employee with their minimum termination pay pursuant to the Employment Standards Act, 2000 (the “ESA”). Conversely, a badly run investigation can significantly increase the employer’s liability if the Court rejects its just-cause defence: see Wilsher v Olympic Wholesale, 2026 ONSC 3620 (“Wilsher”), discussed further below.
Mythbusters
“No one filed a formal complaint, so they cannot investigate me.” Not so, and this is a myth that often catches employees by surprise. The OHSA requires the employer to investigate incidents of harassment, not just complaints. If a manager sees something, hears something, or is shown a screenshot or otherwise learns of an incident, the duty is triggered whether or not anyone fills out a formal complaint, and whether or not the person affected wants an investigation: see Metrolinx v Amalgamated Transit Union, Local 1587, 2025 ONCA 415 (“Metrolinx”), discussed further below.
“I will refuse to take part until my lawyer is in the room.” This is an expensive mistake we see employees make on their own. A non-unionized employee generally has no right to refuse to answer the employer’s questions until counsel is present. If you refuse to attend, the employer may make its findings without your input, and the refusal itself can become a disciplinary issue. It is strongly advisable to get legal advice as soon as you learn that you may be the subject of an investigation.
“They put me on suspension, so I have really been fired.” Not necessarily, but the difference often turns on whether you are still being paid. An employer may suspend an employee pending an investigation where the suspension protects its legitimate business interests, is imposed in good faith, is short, and comes with continued pay and benefits. An unpaid or open-ended suspension is a different matter and will generally amount to a constructive dismissal: see Filice v Complex Services Inc, 2018 ONCA 625 (“Filice”), discussed further below.
“The allegations were not substantiated, so this is over.” Sometimes, but not always. Being cleared in an investigation does not undo a suspension, a demotion or a reduction in duties, or a workplace that may have (quietly) turned against you. If the employer’s response leaves you in an untenable position, you may have a constructive dismissal claim. And if you were named after raising a health and safety concern, an employment standards concern, or a human rights issue, the investigation itself may be a reprisal, which is separately prohibited: see Braganza v Randstad Canada, 2025 CanLII 112295 (ON LRB) (“Braganza”), discussed further below.
What the Courts Have Said
Render, introduced above, shows what a properly run investigation buys an employer, and its limitations. In this case, a 30-year manager was accused of sexual harassment by a coworker. HR investigated, interviewed the relevant witnesses, and the company terminated Render for cause on the strength of that record. The Court of Appeal for Ontario agreed that the conduct was serious enough to justify summary dismissal, even against a spotless 30-year record. But the evidence of misconduct initially discovered in the investigation and put before the Court, however solid, only answered the just-cause question. It did not establish that the misconduct was pre-planned, and the ESA requires more than serious misconduct to strip an employee of their statutory minimums, because it requires wilful, premeditated wrongdoing. Accordingly, the employer was ordered to pay eight weeks of statutory termination pay.
Wilsher, also discussed above, shows how badly a mishandled investigation can backfire, even when the conduct behind the allegation actually happened. In this case, a 55-year-old supervisor with 17 years of service was accused of fraud and time theft for adjusting his staff’s timesheets. The Court found the practice was long-standing, open, and had been used by every night-shift supervisor for nearly two decades. There was no finding of just cause for the employee’s dismissal. Given the employer’s behaviour (a targeted rather than impartial investigation, an interrogation-style meeting called without warning, and unfounded fraud allegations contained in the termination letter), the Court awarded 19 months’ notice and added a further 14 months for the employer’s bad faith in the manner of dismissal, for 33 months in total. This is something of a “throwback”, because extending the notice period for bad faith is an approach the courts have largely moved away from. Today, a court is more likely to address an employer’s bad faith conduct in a flawed investigation through a separate award of aggravated or punitive damages.
Metrolinx, also discussed above, confirms that the duty to investigate does not depend on a formal complaint. In this case, five employees traded demeaning sexual remarks about a female coworker in a private WhatsApp group. She was shown screenshots and raised it with a supervisor, but never filed a formal complaint. All five employees were dismissed. An arbitrator reinstated them, largely because the comments were made in a private, off-duty chat. The Divisional Court overturned that decision, and the Court of Appeal for Ontario agreed, holding that the OHSA requires employers to investigate incidents as well as complaints, and that off-duty conduct can be disciplined where the employer proves a real effect on the workplace. There is a second half to the story, though. On a fresh hearing later that year, a new arbitrator found the misconduct serious but the penalty excessive, and reinstated the employees, substituting a lesser penalty for dismissal. Although this case arose from a unionized context, the OHSA requirement to investigate holds true in non-unionized workplaces as well.
Filice, also discussed above, confirms that an employer’s power to suspend an employee pending investigation has real limits, and continued payment is usually what separates a lawful suspension from a constructive dismissal. In this case, a casino security supervisor was escorted off the floor and placed on an unpaid investigative suspension the same day police told his employer he was under investigation for theft. No misconduct had been established, and charges had not even been laid. The Court of Appeal for Ontario found that suspending him without pay at that stage was a major change to his job that he never agreed to, not a harmless pause, and amounted to a constructive dismissal. The point is not that suspension pending investigation is necessarily off the table. It is that pay and benefits have to continue unless the employment contract clearly permits an unpaid suspension, and even then, the suspension has to be both short and imposed in good faith. Pay alone will not save a suspension that is indefinite or unexplained. In Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court of Canada found that an indefinite paid suspension amounted to a constructive dismissal where the employer had no authority to impose it and did not tell the employee why. The Court emphasized that performing work is a fundamental part of the employment relationship.
Braganza, also discussed above, confirms that an employer bears the burden of proving a termination of employment was not connected to an employee’s protected activity, and that an unclear explanation for the timing of the termination can leave the employer unable to meet that burden. In this case, an employee who had filed a workplace harassment complaint was let go some months later, with the employer citing a restructuring. The Ontario Labour Relations Board found that the timing and the employer’s inconsistent explanations did not meet its burden under section 50 of the OHSA, which puts the onus on the employer to prove that a termination following protected activity was not tainted by reprisal, even in part. In a follow-up remedy decision, 2026 CanLII 46836 (ON LRB), the Board ordered the employer to pay $195,833 once wage loss and damages for injury to dignity and mental distress were added up. Being cleared, or simply taking part honestly in an investigation, does not guarantee that an employer will not retaliate later, but if it does, it can be held liable for it.
Taken together, these cases map some boundaries of an employer’s power to investigate. Render confirms that a solid investigation can support just cause, but even proven “cause” does not excuse an employer from the ESA minimums unless the misconduct was wilful and pre-planned. Metrolinx confirms that the duty to investigate exists independently of a formal complaint, though it does not guarantee the employer’s preferred penalty will survive scrutiny. Wilsher and Filice show the other side of the ledger. An investigation run in bad faith, or a suspension imposed before anything is proven, can convert what should have been a defensible termination into a much more expensive one. And Braganza is the reminder that the employer’s exposure does not end when the investigation does, because an employer who moves against an employee afterward, however the decision is dressed up, still has to prove that it was not connected to the employee’s protected activity.
In short, your employer usually has the right to investigate you, and often has no choice about it. What it does not have is a licence to run the investigation however it likes. When an employer botches the process, whether that means mishandling the investigation, jumping to an unpaid suspension, or moving against an employee after protected activity, the penalties tend to outpace the costs of handling the process correctly from the get-go.
Takeaways for Employees
- Being named in an investigation is not a finding against you, and it is not a termination. It is the start of a process in which what you do still matters.
- Get legal advice before your investigation interview, not after it. You generally cannot refuse to take part, but you can ask for the allegations in writing and for reasonable time to prepare, amongst other things.
- Do not contact the complainant or the witnesses, for any reason. Contact of any kind can be treated as interference.
- A suspension pending investigation should generally come with continued pay and benefits, last a limited time, and be explained to you. If any of those are missing, you may already have a constructive dismissal claim.
- Do not sign anything on the spot, including a statement, a release, or a resignation letter. Resigning can give up entitlements that a dismissal would have preserved.
The Bottom Line
Workplace investigations exist for good reason. Employees are entitled to a workplace free of harassment, and Ontario law requires employers to take complaints seriously. But an investigation is not a verdict, and being named in one does not mean that you have done anything wrong or that your employment is coming to an end. It means that a process has started, one in which the employer holds most of the cards, and in which the choices you make can shape much of what follows. Employers should take note as well: the exposure here is rarely the allegation; it is how the investigation is handled.
If you have been named in a workplace investigation and want to understand where you stand, we are here to help. Call us at 416-593-5844 or email questions@employment-lawyers.ca. We can walk you through it.