Independence Is More Than the Absence of Bias

Workplace Investigations Under the Microscope Part 1 of 3

Procedural fairness in workplace investigations is facing increasing scrutiny
and is a defining factor in whether an investigation will be upheld. This three
part series looks at the lessons emerging for employers, HR leaders,
investigators, and legal counsel from a recent arbitration decision.

A recent arbitration decision adds to a growing body of decisions and reports taking a hard look at how workplace investigations are conducted.[1] It follows other developments we have written about, including an audit of the City of Hamilton’s internal investigation processes [2] and the Ontario Labour Relations Board’s decision in Gassi v. County of Lambton, [3] each of which shone a bright light on the quality and adequacy of investigation processes. Together, they send a consistent message: retaining an investigator is only the beginning. What matters is whether the investigation that follows is fair, reasonable, and able to withstand close scrutiny after the fact. That does not diminish the value of an experienced, qualified investigator. If anything, it makes it more imperative. As more investigations are challenged, and as adjudicators examine them in finer detail, employers need investigators who have the right qualifications and understand not only how to gather and weigh evidence, but how to structure and conduct the process so that it protects independence, treats the parties fairly, and produces legally defensible findings the employer can rely on.

This is the first in a three-part series examining what the recent arbitration decision means for employers, HR leaders, and the counsel who advise them. Part 1 looks at independence and the appearance of impartiality. Part 2 will turn to who to include and exclude as witnesses, credibility, and the risk of approaching evidence with a closed mind. Part 3 will consider the unique complexities of investigating systemic discrimination. Each warrants its own discussion, in part because the decision is careful to identify what the investigator did well alongside the flaws in the process that ultimately undermined the employer’s ability to rely on the result.

The grievance arose from an investigation into serious allegations of harassment, discrimination, and systemic discrimination. The union alleged that the employer failed to meet its duty to investigate. The panel agreed, but not for the reasons one might expect. It found that the investigator was experienced and well qualified, that the employer was entitled to retain them, and that the employer’s representatives never directed, interfered with, or tried to influence the investigation. The concern arose elsewhere: in a series of communications that created the appearance that the investigator was seeking the employer’s input or approval on decisions that should have been the investigator’s alone.

Procedural fairness is contextual

The panel recognized that not every workplace investigation calls for the same level of procedural fairness. The requirements shift with what is at stake. When an investigation may have a serious and lasting effect on the reputations and careers of the people involved, the procedural fairness owed sits at the higher end of the scale.

This investigation fell at the upper end. The allegations were serious and wide-ranging, involving systemic and anti-Black racism, a substantial number of people, and events spanning many years. Both the underlying allegations and the outcome of the investigation carried the potential for significant reputational and career-altering consequences. In that setting, the panel expected a high standard of fairness, and it scrutinized the process through that lens.

For employers, that means procedural fairness starts before the first interview . The nature of the allegations and the potential consequences help determine how rigorous the process needs to be. Matching the investigator and the process to the complexity and potential impact of the complaint and outcome is part of getting it right.

Retaining a qualified investigator is not always enough

The investigator had more than twenty years of experience conducting workplace investigations, a deep background in human rights law, experience with complex, multi-party matters and with allegations of systemic discrimination, institutional discrimination, and anti-Black racism. The panel found that the employer had retained a qualified investigator with precisely the background the union itself had identified as important.

The panel rejected the union’s argument that the investigation was compromised simply because it was coordinated through the office of an administrator. There were no substantial allegations directly involving that administrator. The administrator’s role as a liaison in the investigation had been transparent from the outset, and neither the administrator nor any other employer representative had hindered the investigation.

But the panel noted that “experienced and qualified does not equate to infallible,” and underscored that complex investigations require both subject-matter expertise and disciplined attention to process at every stage. Experience is what allows an investigator to anticipate procedural risks and build safeguards into how they communicate and make decisions.

This decision reinforces that experience and expertise matter. Equally important is whether an investigator’s process is designed to protect the independence, balance, and fairness that a workplace investigation demands throughout.

The appearance of independence matters

Independence is one of the core reasons organizations retain an external investigator, and it has two dimensions. An investigator must actually be independent, and must also appear independent to a reasonable observer.

A finding of actual bias is not required to undermine an investigation. A reasonable apprehension of bias can be enough. The question is whether a reasonably informed person, looking at the process as a whole, could reasonably perceive that the investigator was not impartial. When an investigation involves rights protected under human rights or health and safety legislation, the investigator gathers evidence, resolves conflicts in the evidence, and makes findings that can have real and significant consequences to the parties. That role calls for a high standard of independence.

That standard is especially demanding when the complaint implicates the organization itself, rather than being confined to a dispute between individual employees. In those cases, the employer is not a neutral bystander; it has an interest in the outcome. Communications that might look routine in a dispute between two coworkers can take on a very different meaning when the investigator is corresponding with the very people responsible for defending the organization’s interests.

How the appearance of independence was lost

What troubled the panel in this case was not any single act. It was a pattern of communications, each acceptable on its own, that together created the impression the investigator was seeking the employer’s approval before taking the next step.

The investigator sent the employer’s counsel draft particulars of the complaint noting “for your review,” and inviting “any comments or questions or suggestions.” The investigator did not offer the complainant or the union the same opportunity to weigh in on how the allegations were framed.

More than once, the investigator also wrote to the employer to identify witnesses they intended to interview, set out reasons for including them, and asked for the employer’s “thoughts” and whether it was content for the investigator to proceed, to which the employer replied that it agreed the investigator should go ahead. And when the complainant raised unexpected and significant procedural issues, the investigator laid out the competing considerations and shared a draft response to the complainant with the employer for comment before finalizing it, without giving the other side the same chance to respond.

At the hearing the investigator defended these exchanges as being about logistics and timing, not substance. The panel was not persuaded. Read objectively, the messages went well beyond logistics and status updates. They read as inviting the employer’s input on decisions that were theinvestigator’s sole purview, and the employer’s replies seemed to signal approval.

The problem was not the employer’s conduct

Importantly, the panel emphasized that the employer did nothing wrong in this respect. It did not direct the investigation, did not interfere, and did not try to influence the findings. Its responses were consistently “hands-off”.

The difficulty was that the investigator’s communications created the appearance that the employer held an approval authority, and that the investigator was partial to it. That appearance was not cured by the fact that the employer declined the apparent invitation to weigh in. The invitation itself was the problem.

This illustrates that an investigator can undermine their own independence – and an employer’s ability to rely on the result – even when the employer does not try to influence the process.

What the investigator did well

While it was critical of some of the investigator’s conduct, the panel also highlighted aspects of the investigator’s process that were sound.

The investigator’s method for preparing witness statements was described as fair and thorough. The investigator gave witnesses a written summary of their own evidence and a full opportunity to review and revise it, engaged in a careful and iterative process when needed, and was transparent about how any confidentiality limits would affect use of the evidence. These are all hallmarks of a fair process.

Yet even a process with many strengths falls short overall when independence is compromised. Procedural fairness has to be maintained at every stage of the investigation.

Key takeaways

The lessons arising from this decision are not just for those who retain external investigators or external investigators themselves. They apply equally to HR professionals and others who conduct investigations internally, when maintaining independence and the appearance of impartiality can be even more challenging.

Whatever the role, several practical considerations are worth keeping in mind:

• Keep investigative decisions with the investigator. HR often helps notify witnesses, arrange interviews, and provide policies and records, all of which is helpful and appropriate. But decisions about who to interview, how to frame the allegations, or how to weigh the evidence belong to the investigator.
• Treat the parties even-handedly. If one party is given an opportunity to comment on the framing of allegations, proposed witnesses, draft findings, or a procedural question, the

other should ordinarily receive the same. Asymmetry is often where the appearance of partiality takes hold.

• Set communication expectations at the outset. Agree on who will communicate with the investigator and for what purposes. Keep the relationship arm’s length: that’s why an external investigator was retained in the first place.
• Use neutral language. Phrases such as “let me know your thoughts” or “for your review,” directed to one party, can suggest an approval role that does not exist. Neutral phrasing helps preserve clear boundaries.
• Assume every communication could become an exhibit. Before hitting send, both HR and the investigator should ask how the message would read to someone reviewing the process later, keeping in mind that the appearance of bias is all it takes to undermine an investigation.

Procedural fairness lives in the day-to-day choices an investigator makes, not just in the formal steps of an investigation. Those choices weave together to create a process the parties experience as fair and the employer can rely on.

But independence is only the starting point. Even an investigator who maintains proper distance from the employer can undermine an investigation by approaching the evidence with a closed mind. In Part 2, we will look at how missteps in witness selection, credibility assessments, and weighing of the evidence undermined the fairness of the investigation and consider what a balanced investigation looks like instead.

Natasha Savoline is a partner, HR advisor, and workplace investigator at Bernardi Human Resource Law LLP. She supports organizations in cultivating healthy

workplace cultures through HR/employment law advisory services, training, conflict mediation, leadership coaching, culture assessments, and workplace investigations.

Connect if you would find a conversation helpful.

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1 Governing Council of the University of Toronto v. University of Toronto Faculty Association (June 1, 2026) (Grievance Review Panel) (unreported).

2 Audit of Human Resources Investigations Process (Office of the Auditor General). See my LinkedIn post about it: Audit finds organization’s workplace investigation process procedurally unfair: Would your internal investigation process withstand scrutiny?

³ Alyssa Gassi v The Corporation of the County of Lambton, 2026 CanLII 64081 (ON LRB); What Does an Investigation That’s “Appropriate in the Circumstances” Mean? The OLRB Weighs In.