Informing Parties of the Results of an Investigation – What’s Required and What Isn’t

We all know that following a workplace harassment investigation, an employer has an obligation under the Occupational Health and Safety Act to tell the parties in an investigation the results, in writing. In a recent case released by the Ontario Labour Relations Board (OLRB), Shannon Horner v. Stelco Inc. Lake Erie, the OLRB sets out what an employer is required, and not required, to tell a party at the conclusion of an investigation.

A Stelco employee filed a complaint with her employer alleging she had been sexually harassed on social media by five of her unionized colleagues. A joint labour-management investigation into the harassment complaint was conducted and found that workplace harassment occurred. Stelco told the employee that harassment was found, corrective action would be taken, and retraining would be implemented. It also put this information into a letter. The letter did not reference that sexual harassment was found and only mentioned “harassment.” A summary of the findings was not provided, nor was the identity of the respondent(s) who were found to have sexually harassed the employee, the specific corrective action taken or the type of training to be implemented.

The employee complained to the OLRB that Stelco’s letter was insufficient, and the OLRB agreed that Stelco did not comply with its OHSA disclosure obligations.

The OLRB said that an employer is not required to disclose a report summarizing all the factual findings reached during an investigation. Nor is it required to disclose information to justify the appropriateness of the corrective measures it has taken. However, for an employee to be protected from workplace harassment, an employer must:

• specify the type of harassment found (such as sexual or racial harassment) and the specific results arising from the complaint
• identify the respondent(s) who harassed the employee, and
• specify the types of corrective measures taken by an employer but, for confidentiality reasons, not the specific level of discipline

Employer Take-aways

Following an investigation, employers should remember to:

• tell parties the results of the investigation, in writing, including the type of harassment found
• identify the respondent(s) who harassed the employee; and
• identify the types of corrective measures taken by the employer. If disciplinary action is being taken, the employer should state that fact, but not the specific amount of discipline