OLRB Clarifies Employer Obligations In Communicating Workplace Investigation Outcomes – Employee Rights/ Labour Relations

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.