OLRB Considers Employer’s Disclosure Obligations Under OHSA After Workplace Harassment Investigation – Employee Rights/ Labour Relations

The Ontario Labour Relations Board (the OLRB) has
provided guidance on the extent of an employer’s disclosure
obligations under the Occupational Health and Safety Act
(OHSA) when an investigation into workplace harassment has
been conducted.

In Shannon Horner v
Stelco Inc. Lake Erie (Shannon Horner), the OLRB
considered, for the first time, an employer’s disclosure
obligations under section 32.0.7(1)(b) of the OHSA.
Following the investigation of a workplace harassment incident,
this section requires an employer to inform a worker, 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.

In Shannon Horner, the applicant filed a complaint with
her employer, Stelco, alleging that she had been subject to
harassment on social media by several of her co-workers. The
allegations were investigated and Stelco advised the applicant
verbally and in writing that her complaint was upheld and
corrective action had been, or would be, taken. Stelco also advised
that it intended to implement retraining.

The applicant took the position that Stelco’s response was
deficient and did not comply with the disclosure obligations under
s.32.0.7(1)(b) of the OHSA. Specifically, she claimed the
closure letter did not name the respondents, did not identify who
in particular was found to have engaged in harassment as alleged,
and did not identify who would be subject to corrective action, nor
what corrective action and training would be administered. The
applicant also took issue with the fact Stelco did not distinguish
between harassment and sexual harassment in the letter.

The OLRB found that Stelco’s closure letter did not comply
with s.32.0.7(1)(b) of the OHSA as it did not identify
which of the named respondents were found to have engaged in
harassment and did not identify the specific corrective actions
which would be taken as a result.

The OLRB also noted, however, that this section did not require
the employer to provide a report of the factual findings, indicate
the specific acts of harassment that were found to have occurred or
specify the level of discipline the employer may impose.

Key Takeaways for Employers

Upon completion of an investigation, an employer should provide
the complainant with a closure letter that sets out the results of
the investigation, the identities of the individuals who were found
to have engaged in harassment, and the specific corrective measures
which will be taken as a result.

An employer is not required to provide a
fulsome “report” of the factual findings of its
investigation or outline the specific acts of harassment that were
found to have occurred. While the closure letter should indicate if
disciplinary action has been imposed (as a corrective measure), the
letter does not need to indicate the specific disciplinary
penalty.

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.