Workplace investigations and progressive discipline
Workplace investigations and progressive discipline come with legal obligations and sensitive conversations. Mistakes can lead to serious noncompliance issues and costly penalties. In our last Compliance in Practice webinar, Managing Workplace Investigations and Progressive Discipline with Confidence, Health and Safety Consultant Dustyn B. and Senior HR Professional Kim M. shared the strategies they use to help our clients manage investigations and implement progressive discipline practices.
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Expert Q&A: Managing Workplace Investigations and Progressive Discipline
[Adapted from webinar transcript]
Dustyn: When it comes to violence and harassment, what is the employer’s responsibility when they receive a complaint?
Kim: Even if there isn’t a formal written complaint, employers can’t ignore a situation they become aware of. If a possible workplace violence or harassment incident is known, you still have a duty to act. If an employee doesn’t want to fill out a formal complaint, the employer should still discuss it, offer support, and assess if an investigation is required. Often, a discreet or limited-scope investigation will still be necessary. The key is that the employer took it seriously and took reasonable steps to protect the worker, even without a written complaint.
Dustyn: How would you, as an employer, know when to actually bring in an external investigator?
Kim: If there’s a conflict of interest (for example, a senior manager is involved) or the issue is particularly sensitive, like harassment allegations against leadership, it’s best to use a qualified external investigator. This protects your organization and the integrity and the fairness of the investigation process.
Dustyn: What if one of the employees involved says the investigation wasn’t fair or complete?
Kim: First, check the process. Was the investigator impartial? Did you gather enough facts and let everyone share their side? Did you document all steps and findings? The outcome also needs to be shared in a letter, explaining what you looked at and decided, without breaching privacy. If concerns still remain, invite specific feedback and quickly address any real gaps. Remember, an employee can also file a complaint externally: for example, in Ontario, with the Ministry of Labour, Immigration, Training, and Skills Development, who will review if the employer met its duties and, if needed, order an external investigation. Build your process as if it may very well be reviewed.
Dustyn: What if an employer thinks the complaint was made in bad faith, or it was malicious, or purposely false?
Kim: That’s a valid concern. It’s important to separate unsubstantiated from bad faith. Most unproven complaints aren’t necessarily malicious; they’re just not supported, and there’s no penalty for that. Bad faith means intent, meaning that the person knew their complaint was false or filed it to harm someone. You should only conclude bad faith if the evidence is clear, like an admission or very strong evidence of a lie. If you find bad faith, you can issue an outcome letter stating that the allegation wasn’t supported and the policy was breached. Ensure you’re screening for human rights reprisal risks, apply appropriate proportionate discipline, and tie it back to your policy on false or malicious reports. Keep reinforcing that good faith reporting is encouraged and protected.
Dustyn: Once the investigation is completed and the factors are clear, how does discipline fit in? And how do you balance all those factors in real life and practice?
Kim: The investigation is the fact-finding piece. After that, the employer needs to carefully review all findings to decide if corrective or disciplinary action is needed and then communicate appropriately. Sometimes, it’s about process changes or retraining. But when it’s misconduct, it often leads to progressive discipline. This is a structured way to address misconduct or performance issues, and the goal isn’t punishment. It’s about correction and improvement. We see a lot of risk when employers skip steps or apply discipline inconsistently; that can lead to grievances, wrongful dismissal claims, or even human rights complaints.
Dustyn: What exactly does « progressive » mean here?
Kim: It means escalating steps. Progressive discipline might start with coaching, then verbal warnings, written warnings, a final warning, possibly a suspension, and could lead to termination if there’s no improvement or recurring violations. Each step should be documented and clearly linked to previous conversations. That’s the progressive part. It helps employees understand they have fair notice and a chance to correct their behaviour before more serious steps are taken.
Dustyn: Would there ever be a time when we just skip right to one of the more serious steps along the progressive discipline path?
Kim: It depends. When we say something is serious, we can’t look at one incident in isolation. We need to consider the whole picture and the impact of what happened. For example, consider if there is a business risk, whether it was intentional or careless, how clear expectations were in the first place, and the person’s track record. A single misstep from an employee with a strong performance and no history might call for coaching, but repeated similar issues, especially after clear feedback or a pattern of poor judgement, could make the conduct serious enough to warrant skipping steps. Consistency also matters; look at how similar situations were handled before to ensure the response is fair and defensible.
Dustyn: How does accommodation factor into scenarios like this?
Kim: If a behaviour might be linked to a prohibited ground of discrimination under human rights legislation, like a disability, you have to pause and explore that before disciplining. The progressive discipline process itself can actually help identify those situations early on through dialogue and coaching.
Dustyn: What would one mistake be that turns a manageable, simple issue into a really costly and difficult one?
Kim: Avoiding the issue and treating discipline as optional. When managers try to coach informally forever, you lose the ability to act on it later because it looks like the company has condoned the behaviour. Then, when action is finally taken, it’s often too late or indefensible. Early, consistent action protects both the fairness of the process and the organization.
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