The Decision
In Alyssa Gassi v. The Corporation of the County of Lambton, the Ontario Labour Relations Board ("OLRB") provided its first substantive interpretation of an employer's obligation under section 32.0.7(1)(a) of the Occupational Health and Safety Act ("OHSA") to conduct a workplace harassment investigation that is "appropriate in the circumstances." The decision offers important guidance for employers navigating workplace harassment complaints and confirms that the focus of the inquiry is the adequacy of the investigative process itself, rather than the ultimate correctness of the investigator's conclusions.
Background
The applicant, a Municipal Prosecutor, filed a workplace harassment complaint alleging that she had been subjected to inappropriate conduct by various court staff and others with whom she worked. The employer appointed an internal investigator, who met with the complainant and reviewed her allegations. The investigator ultimately concluded that the complaint was not substantiated.
After receiving the outcome of the investigation, the applicant complained to the Ministry of Labour that the investigation was not "appropriate in the circumstances." A Ministry inspector declined to issue an order, and the applicant appealed that decision to the OLRB.
The Investigation
The employer appointed an internal investigator, who had workplace investigation training and experience. The investigation proceeded promptly. The investigator reviewed the complainant’s allegations and interviewed her at length regarding her concerns.
The investigator’s inquiries otherwise centred on a meeting with the Court Services manager and one other individual. The investigator did not interview the other individuals named in the complaint, nor was the complainant given the opportunity she had been promised to respond to information gathered during the investigation. The investigator ultimately concluded that the complaint was not substantiated.
The Board's Decision
The Board emphasized that the OHSA's workplace harassment provisions impose procedural obligations on employers. The question is not whether workplace harassment actually occurred or whether the investigator reached the correct result. Rather, the focus is on whether the investigative process itself was appropriate in the circumstances.
The Board acknowledged a number of positive aspects of the employer's process: the complaint was investigated promptly, the investigator had workplace investigation training and experience, and the complainant was interviewed extensively regarding her concerns.
However, the Board identified two key deficiencies.
First, despite the fact that the complaint identified multiple individuals, the investigator interviewed only one of those individuals and did not explain why additional interviews were unnecessary. Second, the complainant was told that she would be given an opportunity to respond to information gathered during the investigation but was never actually provided with that opportunity. The Board concluded that, in these circumstances, it could not be satisfied that the investigation met the statutory standard.
At the same time, the Board was careful to note that an appropriate workplace investigation does not require every allegation to be investigated or every witness to be interviewed. Workplace investigations are highly fact-specific and investigators must retain flexibility in determining the scope of their inquiries.
Written Results Do Not Mean Full Disclosure
The Board also addressed the information that must be provided to complainants at the conclusion of a workplace harassment investigation.
The applicant argued that she should have received the investigation report, witness statements and investigation notes. The Board rejected that argument and confirmed that the OHSA only requires employers to provide the results of the investigation and any corrective action that has been or will be taken. The legislation does not require disclosure of the investigation file itself.
Key Takeaways for Employers
This decision provides the first meaningful guidance from the OLRB on what constitutes an investigation that is "appropriate in the circumstances" under the OHSA.
While the Board stopped short of creating a rigid checklist, the decision highlights the importance of procedural fairness and a well-documented investigative process. Employers should ensure that investigators are appropriately trained, can explain key decisions regarding the scope of an investigation, and consider whether parties should be given an opportunity to respond to information that may materially affect the outcome.
Importantly, the decision confirms that the adequacy of a workplace harassment investigation will be assessed based on the fairness and integrity of the process, not simply on the investigator's ultimate conclusion. Employers may therefore find themselves defending not only the outcome of an investigation, but the steps taken to get there.
