Many employers are familiar with their obligation under the Occupational Health and Safety Act (“OHSA“) to investigate workplace harassment complaints in a manner that is “appropriate in the circumstances.” However, the practical requirements of that standard have remained largely undefined. In Alyssa Gassi v The Corporation of the County of Lambton [Gassi], the Ontario Labour Relations Board (the “Board”) provided some of its most detailed guidance to date on the procedural requirements of a workplace harassment investigation under the OHSA. Although the employer successfully defended an allegation that it terminated the employee in reprisal for filing a harassment complaint, the Board nevertheless found that its investigation did not meet the statutory standard of being “appropriate in the circumstances”.

The decision serves as an important reminder that employers may ultimately reach the correct conclusion on a harassment complaint but still fail to comply with their procedural obligations under the OHSA.

Background

The employee, a Municipal Prosecutor, filed a formal workplace harassment complaint alleging that she had been bullied and harassed by coworkers, her manager, police officers, and court staff she worked with. Her employer investigated the complaint and concluded that the allegations were unsubstantiated. Approximately one month later, the employee’s employment was terminated without cause due to performance issues.

Following her dismissal, the employee commenced two proceedings before the Ontario Labour Relations Board:

• The employee alleged that her dismissal constituted a reprisal under the OHSA because she filed a workplace harassment complaint; and
• The employee appealed a Ministry of Labour inspector’s decision concluding that the employer’s workplace harassment investigation complied with the OHSA.

The Decision

Although the employer successfully defended against the employee’s reprisal claim, the Board found that the employer’s workplace harassment investigation was not “appropriate in the circumstances” under the OHSA and, in doing so, provided important guidance on employers’ investigative obligations.

What does “appropriate in the circumstances” mean?

The Board emphasized that the OHSA imposes procedural obligations on employers investigating workplace harassment complaints. The question is not whether the investigator reached the correct conclusion or whether workplace harassment actually occurred. Rather, the focus is on whether the investigative process itself was appropriate in light of the circumstances and fulfilled the legislative purpose of protecting workers from workplace harassment.

In interpreting the phrase “appropriate in the circumstances,” the Board noted that investigations exist on a spectrum. Depending on the nature of the allegations, an investigation may be relatively informal or highly structured. There is no one-size-fits-all process, and workplace investigators retain some discretion to determine the scope of an investigation. However, that discretion must be exercised reasonably and consistently with the purposes of the OHSA.

Where the Investigation Fell Short

The Board acknowledged several aspects of the employer’s investigation that were well executed, including:

• the complaint was addressed promptly,
• the investigator understood the employer’s workplace harassment policies and the relevant OHSA provisions and had experience conducting workplace investigations,
• confidentiality was maintained where possible, and
• the investigator reviewed the complainant’s written allegations before beginning the investigation.

Despite these positive steps, the Board concluded that the investigation was not appropriate in the circumstances for two principal reasons.

First, the investigator interviewed only one individual—the Manager of Court Services—even though the complaint identified several respondents and potential witnesses. The investigator explained that, after speaking with the manager, they had concluded that further interviews were unnecessary because the allegations did not amount to workplace harassment. The Board found that explanation insufficient.

Importantly, the Board clarified that the OHSA does not require workplace investigators to investigate every allegation or interview every witness identified in a complaint. Rather, investigators retain discretion to determine the appropriate scope of an investigation. However, when an investigator decides not to interview key witnesses or respondents, that decision should be supported by a reasonable explanation demonstrating why the investigation nevertheless remained appropriate in the circumstances.

Second, the investigator did not provide the complainant with an opportunity to respond to information gathered during the investigation, despite advising her at the outset that she would have that opportunity. While the Board stopped short of holding that complainants must always be provided an opportunity to reply to evidence, it found that, in the circumstances of this case, the failure to do so contributed to the investigation falling below the statutory standard.

The Board therefore concluded that the investigation was not “appropriate in the circumstances” and directed the parties to make further submissions regarding the appropriate remedy.

What Employers and Investigators Are Not Required to Do

The Board noted that employers are not obligated to retain an external investigator. Internal investigations remain entirely appropriate, provided the workplace investigator possesses a sufficient understanding of the OHSA‘s workplace harassment provisions, the employer’s workplace harassment policies, and preferably has experience or training conducting workplace investigations.

The Board rejected the employee’s claims that the investigation process was unfair because she was not provided with a copy of the investigation report, witness statements, or a complete explanation of how the investigator reached their findings. Instead, the Board emphasized that employers are not required to provide complainants or respondents with copies of the investigation report, witness statements, interview notes, or other evidence gathered during the investigation. The OHSA requires only that the parties be informed of the results of the investigation and any corrective action taken or that will be taken.

The Board Rejected the Employee’s Reprisal Claim

The issue before the Board was whether the employee’s workplace harassment complaint was a factor in the employer’s decision to terminate her employment. Although the Board found deficiencies in the employer’s workplace harassment investigation, it concluded that the evidence did not establish that the complaint played any role in the termination and therefore dismissed the reprisal claim.

The Board accepted that there was temporal proximity between the employee’s harassment complaint and her dismissal. However, it found that the employer established the termination of her employment resulted from workplace conduct unrelated to the employee’s exercise of her rights under the OHSA, which included cancelling court proceedings without authorization, refusing to attend management meetings, unilaterally imposing work-from-home accommodations and failing to comply with the employer’s accommodation and telework processes.

Key Takeaways for Employers

Gassi reinforces that an employer’s obligations under the OHSA extend to ensuring that the investigative process itself is appropriate in the circumstances and provides helpful guidance to employers and workplace investigators as to what an “appropriate” investigation looks like.

1. Clearly Document Investigative Findings: Investigators are not required to interview every witness or investigate every allegation, but they should be able to explain why the investigative steps taken were appropriate in the circumstances. Documenting decisions regarding the scope of the investigation can help ensure those decisions are defensible if later challenged.
2. Focus on the Process, Not Just the Outcome: In Gassi, the Board confirmed that it will not normally revisit an investigator’s factual findings. However, it will examine whether the investigation itself was appropriate in the circumstances, including its scope, witness interviews, and overall methodology. An investigation can therefore be found deficient even if the investigator’s substantive conclusions are never questioned.
3. Select Qualified Investigators: While employers are not required to retain an external investigator, workplace investigators should have a sound understanding of the OHSA‘s workplace harassment provisions, the employer’s workplace harassment policies, and, ideally, experience or training in conducting workplace investigations.
4. Remember What the OHSA Does—and Does Not—Require: Employers must communicate the results of the investigation and any corrective action taken or to be taken, but they are not required to provide investigation reports, witness statements, or interview notes to the parties.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.