A recent decision of the Ontario Labour Relations Board (the "OLRB") provides important guidance to employers on the issue of what is required to be communicated to a complainant at the conclusion of a workplace investigation conducted pursuant to Part III.0.1 of the Occupational Health and Safety Act (the OHSA). In S.H v Stelco Inc. Lake Erie the OLRB was tasked, for the first time, with determining whether Stelco had met its obligations under s.32.07(1)(b) of the OHSA which requires an employer to inform a complainant in writing "of the results of the investigation and any corrective action that has been taken or that will be taken as a result of the investigation".
A worker at Stelco's Lake Erie Works facility brought a harassment complaint against several co-workers claiming they had been harassed on social media. After conducting a joint labour-management investigation and meeting with the complainant, Stelco wrote to the complainant to confirm that the harassment complaint had been substantiated and corrective action, as well as retraining, would be taken. Not satisfied with the contents of the closure letter, the complainant made a complaint to the Ministry of Labour. The Inspector assigned to the file refused to issue an order and the complainant, together with their union, appealed the Inspector's decision to the OLRB.
Applying the well-known statutory interpretation principle that the words in the applicable provision should be read in their "ordinary and grammatical sense harmoniously with the scheme" of the OHSA, the OLRB determined that s.32.07(1)(b) should be interpreted as requiring the employer to identify the specific respondent(s) that were found to have harassed the complainant and the corrective actions that had or would be taken as a result of the investigation. The OLRB agreed with Stelco that the disclosure provisions did not require the complainant to receive a copy of the investigation report or to know the specific discipline being imposed in the circumstances as the latter was confidential and would not advance the purposes of the legislation.
Takeaways for Employers
In many workplace investigations there is only a single respondent so knowing the identity of the worker found to have engaged in harassing behaviour is not something that can be kept confidential. The OLRB's decision confirms that the same principles should apply where there are multiple respondents. Requiring an employer to disclose which respondents engaged in offending behaviour prevents a complainant from "being in the dark" and without any real information about who was found to have harassed the complainant. The OLRB was clear that with respect to this issue, the interest in maintaining confidentiality was outweighed by the complainant's right to know who was found to have engaged in harassing behaviour. Employers, therefore, must be careful not to make promises of confidentiality that they will not be able to maintain when conducting workplace investigations.
Another important aspect of the ORLB's decision is that complainants and respondents are not entitled to a copy of the investigation report and/or to know the specific findings of fact made in the course of the investigation. This prevents workplace parties from dissecting the investigation process itself, and the findings from that process, which can frustrate and unduly delay resolving the issues that gave rise to the complaint in the first place. The OLRB's clarification of the limits of the information required to be provided to the workplace parties involved in the investigation provides important guidance to employers who often face pressure to disclose all of the information gathered through the investigation process. It remains to be seen whether these limits of disclosure will apply to ancillary proceedings where the investigation may be a relevant factor (such as a labour arbitration, wrongful dismissal or human rights application).
Finally, the OLRB's decision emphasizes the often delicate balancing act employers must engage in throughout the investigation process. Properly trained and experienced investigators, whether internal or external to the organization, continues to be critical in ensuring a workplace investigation is defendable in the circumstances.
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