The Ontario Labour Relations Board (“OLRB”) recently considered the scope of an employer’s duty to report the results of a workplace investigation pursuant to section 32.07(1)(b) of the Occupational Health and Safety Act, RSO 1990, c O.1 (“OHSA”). At issue in Shannon Horner v Stelco Inc. Lake Erie, 2024 CanLII 16448, was the sufficiency of an outcome letter provided by the employer to the applicant following the conclusion of a workplace harassment investigation. The outcome letter advised the applicant that the investigation had concluded that evidence of harassment was found, that corrective action had been or would be taken as a result, and that the employer would be proceeding with mandatory training for all bargaining unit employees.
The applicant was dissatisfied with the content of the outcome letter and filed a complaint with the Ministry of Labour. An Inspector from the Ministry of Labour declined to make any orders in relation to the sufficiency of the outcome letter. The applicant appealed the inspector’s refusal to issue an order to the OLRB. At issue on appeal was whether the Inspector erred in refusing to issue an order regarding the adequacy of the outcome letter.
The OLRB allowed the appeal, in part, and concluded that the outcome letter did not comply with section 32.07(1)(b) of the OHSA. Primarily, while the outcome letter disclosed the “results” of the investigation, it fell short in that it did not identify which of the named respondents were found to have engaged in harassment, as alleged. Notably, the Vice-Chair concluded that reporting the results of the investigation did not require the employer to provide the complainant with a “report” setting out all of the factual findings reached during the investigation.
With respect to corrective measures, the Vice-Chair held that the outcome letter failed to identify the specific corrective measures taken, ie., whether discipline was imposed. The Vice-Chair concluded that in order to satisfy the requirements of section 32.07(1)(b) in relation to corrective measures, the specific level of discipline need not be disclosed for reasons of confidentiality, but the employer did need to disclose what corrective action was taken.
This decision is the first in which the OLRB has considered the scope of the employer’s reporting obligations under section 32.07(1)(b). It offers pivotal guidance to employers grappling with reporting the outcomes of workplace harassment investigations to complainants. The Vice-Chair considered the legislative intent of section 32.07(1)(b) which is to “protect a worker from workplace harassment”. This objective cannot meaningfully be advanced if it “leaves victims of workplace harassment in the dark with no real information concerning who was found to have engaged in workplace harassment and what, if any, corrective measures would be implemented by an employer to respond to such circumstances”.
The OLRB’s guidance confirms the following:
- Employers need not disclose a detailed “report” outlining all of the factual findings of the investigation.
- The outcome letter should identify whether findings of harassment were made and if so, where there are multiple respondents, the outcome letter should identify which respondents the allegations were validated against.
- Employers should disclose what specific corrective action was taken, if any,
- In the event of discipline, the disclosure of what corrective action was taken need not extend to identifying the specific level of discipline imposed.