We speak (and blog and train) often about how to conduct a workplace investigation. However, it's important to remember that employers need to be aware of their legal obligations relating to when to start one and how to finish it. Two recent decisions provide important information about these investigation bookends.
Duty to Investigate
S.E. v. 2474489 Ontario Inc. (o/a Opa! Souvlaki)1
The facts:
The applicant filed a complaint with the Human Rights Tribunal of Ontario (HRTO) alleging discrimination with respect to employment because of sex, including sexual harassment, sexual solicitation or advances, and reprisal. The applicant worked at a restaurant franchise (corporate respondent) owned solely by the personal respondent. "Daniel" (who declared himself a friend of the personal respondent) was hired as a manager a few months into the applicant's tenure. The applicant alleged that from the start of his employment, Daniel engaged in sexual harassment including inappropriate questions and jokes, requesting that the applicant perform oral sex on him, and telling her details about his sexual relationships. When the applicant complained to the personal respondent, he did not investigate but offered to move the applicant to a new, not-yet-open location, which the applicant refused.
Subsequently, Daniel sexually assaulted the applicant twice. The applicant reported the assaults to the personal respondent who said he'd talk to Daniel but that he "couldn't do anything" about her complaint. The applicant later communicated that she could not attend her shift that day and the personal respondent threatened to fire her. The respondents did not file their responses and were therefore noted in default of the application and deemed to have accepted all the allegations. The HRTO held a default hearing where the applicant testified and was the only witness.
The decision:
The adjudicator found the applicant to be credible and found that the respondents had breached their duty to investigate, which is part of an employer's obligation to provide a workplace free from harassment and discrimination under the Ontario Human Rights Code2.
The respondents had been aware of the applicant's allegations of sexual harassment against Daniel, and, applying the criteria and the reasonableness standard established in Laskowska v. Marineland of Canada Ltd.3, the adjudicator noted: "The respondent[s] had an obligation to undertake prompt, serious and thorough investigation and to take necessary actions, including such actions that may have had consequences for Daniel." However, the applicant's complaints were not taken seriously.
The applicant was also found to have been "subjected to an intolerable work environment that included persistent and repeated sexual harassment leading up to two serious sexual assaults." The respondents had known, failed to act, and the applicant stated that she had never received any training on the employer's harassment policy. The adjudicator found that the applicant was forced to quit due to the poisoned work environment.
Additionally, the personal respondent's threat to fire the applicant was also found to be an instance of reprisal (the offer to move her to another location was not). The applicant gave evidence that she had made excuses at the last minute to not attend work on several occasions before without any action or caution from the personal respondent. Threatening to fire the applicant on this occasion, shortly after her complaints, when he had coped with her absences before, indicated that the personal respondent did not know how to deal with the complaints in a meaningful way. Therefore, the adjudicator viewed the threat to be a result of the personal respondent's starting to see the applicant as "a problem," a part of which was her attempt to enforce her rights. Furthermore, there was no evidence from the respondents to establish a non-discriminatory reason for the threat of termination from employment.
The respondents were found to have discriminated against the applicant and were ordered to pay compensation of approximately $39,000 for lost wages and infringing the applicant's rights, as well as to undergo training within 30 days.
Duty to Disclose Results
Shannon Horner v. Stelco Inc. Lake Erie4
The facts:
The applicant worked for the respondent and made a complaint regarding sexual harassment she experienced on social media from several colleagues. The employer conducted a joint labour-management investigation into her allegations. It was determined that workplace harassment had occurred, and it was appropriate for the respondent to take corrective action. The applicant was informed both verbally and in writing that her complaint had been substantiated, corrective action had or would be taken, and general retraining would occur.
The applicant felt that the letter she received from her employer was deficient and did not comply with employers' disclosure obligations under the Ontario Occupational Health and Safety Act5 (OHSA), which required that the subject of workplace harassment be "informed in writing of the results of the investigation and of any corrective action that has been taken or will be taken as a result of the investigation." [emphasis added] The applicant complained to the Ministry of Labour (MOL), which then conducted an inspection but declined to issue any orders. Consequently, the applicant appealed to the Ontario Labour Relations Board (OLRB), arguing that the respondent had not met its duty under the OHSA, and the MOL erred in its inspection.
The applicant argued that she was entitled to know which of the five individuals she named was found to have participated in the harassment; a summary of the factual findings made; and the specific corrective action taken — particularly as the conduct had been sexual harassment and she was a female in a male dominated environment. The respondent argued that for privacy and confidentiality reasons, as well as applying principles of statutory interpretation, the applicant was not entitled to more information.
The decision:
The OLRB reviewed the legislative history of the OHSA, and relevant amendments made to strengthen the prohibitions against sexual harassment, in order to interpret the relevant section, and particularly the bolded terms. It found that looking at the words in their grammatical and ordinary sense, while also having regard for the purpose of the legislation to protect workers from harassment, the Act imposed a greater disclosure obligation than what the respondent had provided and was arguing for.
The OLRB stated, "[s]imply put, to be 'informed' of the 'results' of a harassment investigation and 'of any' corrective action that has or will be taken, one must be advised of the specific results arising from a complaint of harassment and the specific corrective measures taken by an employer to address findings of harassment." The closure letter provided to the applicant had not informed her of which of the named respondents to the complaint were found to have engaged in harassment, nor did it inform her of the corrective action to be taken. Without this information, a victim of workplace harassment would be left with little reliable information concerning serious workplace health and safety matters, thus diminishing, rather than promoting, the objective of protecting workers.
The OLRB disagreed however that the OHSA imposed an obligation on employers to disclose the factual findings from the investigation or the specific acts of harassment. Where the OHSA required disclosure of "reports" and "findings" in other sections, those specific words were used. It also did not find that the OHSA required disclosing the specific level of discipline to be imposed or the factors the employer considered in deciding the corrective measures to apply. While confidentiality concerns and the integrity of the investigation were noted as important, the limited nature of the disclosure obligations mitigated against any potential harm. The OLRB ordered that the respondent re-issue a closure letter to rectify the deficiencies identified.
Conclusion:
While many employers would likely have conducted an investigation in a situation such as that described in the first case above, the decision serves as a good reminder for employers — large and small — that investigating allegations of harassment and discrimination is not merely a good thing to do, but a legal obligation. At the other end of the process, the second decision makes clear the scope of the employer's duty to disclose the results of an investigation to a complainant once the investigation has been completed.
Footnotes
1. 2024 HRTO 343 (CanLII).
2. R.S.O. 1990, c. H. 19.
3. 2005 HRTO 30 (CanLII).
4. 2024 CanLII 16448 (ON LRB).
5. R.S.O. 1990, c. O.1.
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.
