OHSA: What are an employer’s disclosure obligations after a workplace investigation has been completed?
Background:
Shannon Horner v. Stelco Inc.
Parties: Stelco (Employer), Shannon Horner (Applicant)
The applicant submitted a complaint to her employer alleging that she had been the subject of harassment via social media by several of her coworkers. The employer investigated and determined that workplace harassment had taken place and that it was appropriate to take corrective action.
The employer met with the applicant and advised her (in person and in writing) that her complaint of harassment was upheld, and that corrective action had or would be taken, including the implementation of retraining.
The applicant felt that the content of the letter did not meet the disclosure obligations under section 32.0.7(1)(b) of the Occupational Health and Safety Act (the Act) and filed a complaint with the Ministry of Labour.
The applicant claimed the closure letter:
- did not name the respondents and did not identify who in particular was found to have engaged in harassment.
- did not identify who would be subject to corrective action, nor what corrective action was/would be taken.
- did not distinguish between harassment and sexual harassment.
Decision:
The Ministry of Labour Inspector declined to issue an order to the employer that would compel them to meet their disclosure obligations under the Act, and the Appellant filed an appeal with the Ontario Labour Relations Board (OLRB).
| Section 32.0.7(1)(b) of the Act states: 32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that, 32.0.7(1)(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation. |
The OLRB decided that:
- The Act does not require an employer to provide a complainant with a “report” setting out all of the factual “findings” reached during a workplace harassment investigation or to disclose the specific acts of harassment that were found to have occurred.
- Disclosure of the specific level of discipline that may be imposed by an employer as a result of a finding of workplace harassment is not required under the Act, as that information is confidential.
Stelco’s closure letter did not comply with section 32.0.7(1)(b) of the Act because:
- 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.
- it did not disclose the specific corrective measures that had or would be taken as a result of the investigation.
Key Takeaways:
After an investigation has been completed, employers should notify the parties involved, in writing, of:
- The results of the investigation.
- The identities of the individuals found to have engaged in harassment.
- The specific corrective measures the employer has taken/ will take.
An employer is not required to:
- Provide a detailed report of the factual findings of the investigation.
- Outline the specific acts of harassment found to have occurred.
- Disclose the specific disciplinary penalty imposed.
Sources:
Shannon Horner v. Stelco Inc. Lake Erie, 2024 CanLII 16448 (ON)
Occupational Health and Safety Act, RSO 1990
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