What Ontario Employers Must Do in the First 48 Hours After a Harassment Complaint

The employer’s first 48 hours after receiving a workplace harassment complaint determine whether they are in a defensible position or not. What happens in those initial hours -- and what does not happen -- sets the trajectory for everything that follows. Most employers get this wrong not because they are indifferent to the complaint, but because they respond instinctively rather than procedurally.

Confirm That You Have Received a Complaint

Under s.32.0.7 of the Occupational Health and Safety Act, the investigation obligation is triggered not just when a formal complaint is filed but when the employer “becomes aware” of a harassment incident. An informal disclosure -- a supervisor mentioning that an employee came to them upset about a co-worker, a comment made during a performance review, an email that references uncomfortable behaviour -- triggers the same investigation obligation as a signed complaint form. The moment you are aware of it, the clock starts. There is no threshold of formality that must be crossed before the obligation applies.

Do Not Begin Investigating Immediately

The instinct is to call everyone into a room and sort it out. Resist it. Premature conversations contaminate the evidentiary record, alert the respondent before interim measures have been assessed, and foreclose the investigator’s ability to obtain reliable first accounts. Do not speak substantively to the respondent, co-workers, or witnesses about the complaint until the investigation process has been formally established and the right investigator identified. Informal conversations in the corridor are the most common source of procedural fairness complaints.

Assess Whether Interim Measures Are Needed

Before any investigation begins, assess whether the complainant and respondent need to be separated. This does not require a finding that the complaint is valid -- it requires only that you assess the risk of ongoing contact while the investigation proceeds. Options include modified reporting structures, physical separation of workspaces, temporary schedule adjustments, or administrative leave with pay. Unpaid leave or forced schedule changes that effectively punish the respondent before any finding has been made create constructive dismissal exposure. Administrative leave with pay is the standard interim measure where separation is genuinely necessary.

Document the interim measure decision and the reasoning behind it. If you assess that no interim measure is required, document that assessment as well.

Preserve Evidence

Issue an immediate hold on relevant documentation: emails, text messages, attendance records, prior complaint files, CCTV footage if applicable, and any other material that relates to the parties or the incident. Delete nothing. In subsequent proceedings, evidence destruction is treated as consciousness of guilt. Advise every supervisor and HR staff member with access to relevant records that no documents are to be altered or deleted pending the investigation. This direction should be in writing.

Decide Who Will Investigate

This decision needs to be made in the first 48 hours, not three weeks later. The factors that determine whether internal investigation is appropriate:

• --Is the respondent a manager, director, or owner?
• --Does the person who would conduct an internal investigation report to the respondent, or have a prior relationship with either party?
• --Does HR have documented workplace investigation experience at the level this complaint requires?
• --Is there any conflict of interest between HR and either party?
• --Does the complaint allege conduct that is also a potential Human Rights Code violation?

If the answer to any of these is yes, internal investigation is not appropriate. An independent third-party investigator needs to be engaged before anyone speaks to the parties.

Notify the Complainant of the Process

The complainant is entitled to know that their complaint has been received, that an investigation will occur, and what that process looks like. This communication needs to be in writing. It should be clear about the investigation process and anticipated timeline, clear about confidentiality (the matter will be handled on a need-to-know basis, not kept secret from everyone involved), and explicit about the prohibition on retaliation. Any adverse treatment of the complainant in connection with making a complaint is a separate OHSA violation, independent of whether the underlying complaint is substantiated.

Do Not Promise Outcomes

“This will never happen again” and “something will be done” are statements that create liability if the investigation finds the complaint unsubstantiated or the respondent’s conduct does not meet the legal threshold for discipline. The correct language is: the complaint has been received, an investigation will be conducted, and the outcome will be communicated when the process is complete. No promises, no predictions.

Document Every Decision From This Point Forward

From the moment of awareness, every decision and conversation needs to be documented. Date-stamped notes, emails confirming verbal conversations, written records of interim measure decisions and the reasoning behind them. The investigation file is produceable in subsequent HRTO applications and Ministry of Labour proceedings. Gaps in documentation are read as the absence of process -- not as evidence that the process occurred informally.