'It should be very, very clear': employment lawyer on OLRB decision clarifying requirements around harassment investigation disclosure
In a move reversing a Ministry of Labour decision, the Ontario Labour Relations Board (OLRB) has clarified what employers’ duties are in reporting outcomes of harassment complaint investigations.
Section 32.0.7(1)(b) of the Ontario Health and Safety Act (OHSA) stipulates that following an investigation into a harassment complaint, an employer is required to provide a written report to the complainant, stating the outcome of the investigation and any corrective actions taken as a result.
The decision, Shannon Horner v Stelco Inc. Lake Erie addressed whether the names of the alleged harassers should have been disclosed in that report, and what level of detail was necessary.
“The Act is public welfare legislation that is designed to provide a minimum level of protection for the health and safety of workers and narrow or technical interpretations that would interfere or frustrate that purpose should be avoided,” wrote the OLRB in its decision.
“In the Board’s view, the interpretation advanced by Stelco is both a ‘narrow’ and ‘technical’ interpretation that interferes with the Act’s purpose.”
Employee disputed harassment investigation report
Horner, a member of United Steelworkers union Local 8782, filed a complaint with Stelco in August 2022 alleging she was being harassed by co-workers on social media. Stelco and the union conducted a joint investigation in accordance with their collective agreement, including reviewing screenshots and photos provided by Horner and interviewing the five alleged harassers.
Their investigation did find that there had been harassment against Horner, and on October 12, she was provided with a written letter stating:
“The Company and the Union have jointly investigated the complaint filed under Item 9 of the Basic Agreement. After conducting a thorough investigation, we find evidence of harassment as contemplated in Item 9 of the Basic Agreement.
“As a result of this investigation, corrective actions have been or will be taken by the Company. Additionally, we will be proceeding with mandatory training for all bargaining unit employees.
“We encourage you to bring any further concerns to your supervisor, union representative or Human Resources so issues can be addressed.”
Horner was not satisfied with this letter; she took issue with its lack of detail around what type of harassment had been found to have taken place, who was found to have done the harassing, and what the corrective actions would be.
She filed a complaint with the Ministry of Labour, on the grounds that Stelco had not fulfilled its duty to report according to section 32.0.7(1)(b) the OHSA. After a Ministry inspection did not produce an order for Stelco to revise its letter, Horner brought this appeal to the OLRB.
Privacy, integrity of harassment investigations under scrutiny
A common concern for employers in disclosing outcomes of harassment investigations is breaching the privacy of the employees involved, says Artimes Ghahremani, labour and employment lawyer at Hicks Morley in Toronto.
“There's also a common concern, which is cited in the decision, about undermining the integrity of the investigation process,” Ghahremani tells HRD.
“What an employer is required to do, and what we have some clarity on from this decision, is that the complainant really should be notified of the specific results of each allegation they've made and the outcome, with respect to the individual respondents. It should be very, very clear which individuals were and were not to have been found to have engaged in the harassment.”
In its findings, the OLRB wrote that providing a claimant with the names of those who had been found to be harassers was a necessary step to ensuring that the aim of the OHSA, which is to protect workers from harassment, is upheld.
It did, however, agree with Stelco that an employer is not required to provide details to a claimant such as which disciplinary actions were or will be taken, and any background information accessed in order to determine what measures would be appropriate.
“For example, if an employer considered a prior discipline record when considering the corrective action, all of those details don't have to be shared with the complainant,” says Ghahremani.
Connie Stubbs, Senior Labour Relations Representative for Stelco at the time of the complaint (she is now the Manager of Labour Relations), was responsible for investigations and disciplinary matters.
Stubbs told the OLRB that in her experience, “the content of the closure letter was in keeping with general human resource standards. She further stated that the Union did not object to the form or content of the closure letter […] ensuring confidentiality of the process and the statements provided by witnesses is crucial to the efficacy of the investigation. She stated that if witnesses believed that the content of their statements might be disclosed, they would be reluctant to participate and/or provide honest and objective information.”
Privacy has limits in workplace harassment investigations
In the report provided to Horner, it was stated that “harassment” had been found to have taken place, rather than “sexual harassment”, which is what the incident had been. It also did not disclose how many of the respondents were found to have harassed Horner, and it did not state which, if any, were subject to corrective action, nor what type of training would be administered by Stelco in response to the incident.
“However, the Board agrees with Stelco that section 32.0.7(1)(b) of the Act does not go as far as the applicant, the Union and the Director suggest. The Board does not accept that it requires an employer to provide a complainant with a ‘report’ setting out all of the factual ‘findings’ reached during an investigation into a complaint of workplace harassment. Nor does it require an employer to disclose the specific acts of harassment that were found to have occurred,” the OLRB wrote.
For its part, the Union also submitted a request to the OLRB, asking that it disclose to Horner the names of those who were found to have harassed her. Horner submitted that she had worked for Stelco for 25 years in a male-dominated industry, making it even more important for her to know what corrective measures had been taken.
“A victim of harassment should not be left in the dark with respect to the findings reached by an employer because such an information deficit would preclude the victim of harassment from being apprised of the nature of the harassment that was found to have occurred and the steps taken by an employer to address such health and safety concerns,” she said.
Both parties have rights in harassment investigations
In striking a balance between privacy and protecting workers from harassment, Ontario employers can use this decision as a template going forward when preparing investigation reports, says Ghahremani.
“A really important takeaway that I would encourage employers to keep in mind is that both the complainant and the respondent have rights in the investigation process. From the complainant’s perspective, they have the right to be heard, the right to have their allegations investigated … the right to know the outcome,” she says.
“On the other hand of that, the respondent has the right to know the specific allegations that are made against them, and they also should have an opportunity to respond to them. The respondent should be informed of the outcome in writing, if they were a worker of the employer.”
The OLRB ordered Stelco to re-issue a new closure letter to Horner, with the addition of what specific corrective measures would be taken as a result of the investigation, and which of the respondents were found to have engaged in harassment.
“An employer is not required to provide the complainant with a report setting out all of the factual findings of their investigations. That's not going to be the case. In the event that the investigation leads to some kind of discipline, it's sufficient that they say that it's discipline in the form of corrective action,” says Ghahremani.
“The board's guidance is that [claimants] need to know whether their allegations were substantiated or not. If they've made an allegation of harassment or sexual harassment, they're entitled to an answer that explains, ‘Yes, it's been substantiated, or not’.”