The Ontario Labour Relations Board (the “OLRB”) in Shannon Horner v Stelco Inc. Lake Erie [Horner] considered the scope of the duties imposed on employers with respect to workplace harassment under section 32.0.7(1)(b) of Ontario’s Occupational Health and Safety Act [OHSA]. The OLRB’s decision clarified certain details that employers must communicate to a worker who is found to have experienced workplace harassment, including who the employer found to have engaged in harassment.
Facts
In Horner, the employee brought a harassment complaint to her employer and cited incidents occurring on social media involving several coworkers. The employer and union representatives jointly investigated the allegations in accordance with the terms of the collective agreement.
The investigative team concluded that workplace harassment occurred, and the employer determined corrective action was necessary. The employer advised the complainant that there was “evidence of harassment”, that corrective measures had been or would be taken, and that it would implement mandatory training for all employees. While the employer understood corrective action to capture discipline, retraining, mandatory counselling, reinstruction, and coaching, it did not specify what type of corrective action would be applied.
The complainant was dissatisfied with the lack of detail provided to her. However, the employer declined to provide more information due to its concerns about the privacy interests of the respondent employees who were found to have engaged in harassment.
As a result, the employee complained to the Ministry of Labour (the “MOL”). The MOL inspector who investigated the employee’s concerns declined to issue an order requiring the employer to provide the complainant with more details about the investigation.
The complainant and the union appealed the MOL inspector’s decision to the OLRB.
Decision
The central issue before the OLRB was whether the employer fulfilled its obligations under the OHSA to inform the complainant in writing of the investigation’s results and any corrective actions taken as a result. The OLRB concluded that the OHSA could not advance its purpose of protecting workers from workplace harassment if victims were left “in the dark”. Accordingly, the OLRB interpreted the OHSA to require employers to provide the “specific results” arising from a harassment complaint, as well as the “specific corrective measures taken” to address these findings.
Based on its interpretation of the OHSA, the OLRB held that the employer’s conduct constituted non-compliance. Accordingly, the OLRB ordered the employer to issue a revised closure letter to the complainant identifying the respondents found to have engaged in harassment, as well as the corresponding corrective actions that were implemented in response.
Notably, the OLRB held that the OHSA did not require the employer to:
- provide a report of the factual findings;
- disclose information it relied upon to justify the appropriateness of the corrective measures that it had taken; or
- specify the level of discipline it imposed on the respondents, as the information is confidential and would not serve the OHSA‘s purpose of protecting workers.
Takeaways for Employers
Horner underscores the importance of compliance with OHSA obligations in addressing workplace harassment allegations. While the OLRB did not impose any new obligations on employers, its decision clarified specific requirements under the OHSA, including:
- where allegations are made against multiple respondents, employers must inform the complainant which respondent(s) were found to have engaged in workplace harassment;
- employers are required to inform the complainant about the specific form of corrective measure taken in response to the investigation. However, they do not need to disclose to the complainant the “specific level of discipline” they impose on a respondent, nor must they share confidential mitigating or aggravating factors that led to the decision about what corrective action is appropriate; and
- while the OHSA requires certain information to be disclosed, employers are not obligated to provide the parties to the investigation with a copy of the investigation report outlining all the factual findings, the specific acts of harassment found to have occurred, or the facts upon which the employer relied to implement corrective measures.
Given the complex nature of workplace harassment investigations, prudent employers should seek legal advice when they become aware of a complaint or incident of potentially harassing conduct, to ensure that the matter is addressed as appropriate in the circumstances.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
