Tell me More: OLRB Clarifies Employer Duty to Report After Harassment Investigation
The Ontario Occupational Health and Safety Act (“OHSA”) requires provincially-regulated employers to have in place (and review annually) a written policy addressing workplace harassment. The OHSA defines ‘workplace harassment’ as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
To further protect workers from harassment, section 32.0.7(1) of the OHSA also requires that employers:
investigate allegations of harassment (in a manner appropriate to the circumstances); and
inform the complainant and alleged harasser in writing of the results of the investigation and any corrective action that has been, or will be, taken as a result.
The requirements of this duty were recently the subject of an appeal before the Ontario Labour Relations Board (“OLRB”).
In Horner v.Stelco Inc. Lake Erie, the OLRB considered whether the respondent employer had met its duty to inform the complainant about corrective action implemented following a workplace harassment investigation.
The complainant (who held a unionized role) filed a complaint with her employer, alleging that she was being harassed by several of her co-workers on social media. The employer investigated this allegation and concluded that workplace harassment had occurred. The employer then issued a letter to the complainant advising of this conclusion and noting that its would be taking corrective action (without specifying what this would be).
The complaint considered the letter to be non-compliant with the disclosure obligations set out within section 32.0.7(1) of the OHSA and filed a complaint with the Ministry of Labour.
A Ministry Inspector was assigned to investigate and determined that the employer’s letter met OHSA obligations. The complainant appealed this decision to the OLRB.
The OLRB overturned the Ministry Inspector’s decision. In so doing, it found the employer’s letter failed to comply with section 32.0.7(1) of the OHSA as follows:
its disclosure of the “results” of the investigation did not identify which of the named respondents were found to have engaged in harassment as alleged; and
it did not disclose the specific corrective measures that had or would be taken as a result of the investigation.
In reaching this conclusion, the OLRB opined that:
Simply put, to be “informed” of the “results” of a harassment investigation and “of any” corrective action that has or will be taken, one must be advised of the specific results arising from a complaint of harassment, and of the specific corrective measures taken by an employer to address findings of harassment.
The OLRB offered further guidance to employers looking to meet this requirement. It noted that, while an employer would have a statutory obligation to advise that discipline was being issued following an investigation, it was not required to disclose the specific level, or nature, of that discipline. For example, an employer may be required to advise that an individual would be suspended following an investigation but would not have to disclose the length of the suspension, or any associated conditions. Generally, this degree of detail will be considered confidential (and largely disconnected from the legislative purpose of protecting workers).
Takeaway for Employers
This decision, to our knowledge, reflects the first time an adjudicative body has considered the scope of an employer’s obligations under section 32.0.7(1) of the OHSA.
It offers useful guidance for employers looking to fulfil their statutory obligations following a workplace harassment investigation. The key takeaway for employers is to provide a sufficient degree of specificity in writing while balancing the subject employee’s interest in having their disciplinary record remain confidential.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.