Does an “inspector” appointed by the Ontario Ministry of Labour pursuant to the provisions of Ontario’s Occupational Health and Safety Act have the right to receive and review the entire, unredacted copy of an independent workplace harassment investigator’s report?
In Wal-Mart Canada Logistics ULC v Gail Stewart, 2020 CanLII 2070 (ON LRB), the Ontario Labour Relations Board held that she does.
Facts
On August 10, 2017, two associates employed at a distribution centre operated by Walmart in Mississauga alleged that they had been subjected to workplace harassment by their team leader.
Walmart assigned an investigator who began to investigate the complaint.
The investigator was suddenly and unexpectedly away from work between October 24, 2017, and January 24, 2018. The findings were completed on February 9, 2018, and the results were delivered to the parties on February 21, 2018.
On March 13, 2018, Inspector Heather Rocheleau, an “inspector” appointed by Ontario’s Ministry of Labour pursuant to the provisions of the OHSA, and another inspector attended at the distribution centre and advised that the Ministry had been contacted, and it had been alleged that a workplace harassment investigation had not been completed. Inspector Rocheleau asked to speak to someone from Human Resources; however, no one was available at the time.
Walmart maintains all investigation reports centrally at its "Store Support Centre" located at its head office in Mississauga, Ontario. As such, Inspector Rocheleau was not able to obtain investigation materials from the distribution centre.
A Human Resources representative spoke with Inspector Rocheleau by telephone the following morning. At that time, Inspector Rocheleau advised that she wished to speak with the harassment investigator and wanted copies of all notes from the investigation.
On March 27, 2018, following discussions with Walmart, Inspector Rocheleau attended at the Store Support Centre and was offered the reporting letters sent to the parties and a redacted copy of the investigation report regarding the involved workplace harassment complaint. Inspector Rocheleau did not take a copy of the redacted report and indicated that she would return at a later date following internal consultation with others at the Ministry.
Subsequently, Walmart and the Ministry engaged in detailed and considered discussions regarding the extent of investigation materials that the Ministry should be able to review in order to determine whether an investigation appropriate in the circumstances had been conducted into the complaint. Ultimately, they could not come to agreement on the extent of disclosure of the investigation report.
The Employment Practices Team at Walmart is based out of the Store Support Centre. This team manages the harassment investigation program for the country, in addition to investigations into other types of allegations. When a complaint of workplace harassment is brought to the attention of Employment Practices, an investigator is assigned to the complaint. Following an investigation into the complaint, the investigator completes a Confidential Investigation Plan and Findings Report which in the normal course is provided only to Walmart and stored at its head office in Mississauga. The investigator also provides to the complainant a letter indicating whether or not the complaint was substantiated by the investigation. However, the contents of the Findings Report are never shared with anyone, including the complainant and the respondent.
The Findings Report is used to document all information relating to a workplace harassment investigation. The information contained on the Findings Report, when completed, would include:
- The date of the complaint;
- The date the complaint was assigned for investigation;
- The identities of the lead investigator, any subject matter experts who were consulted, the complainant(s) and respondent(s), and witnesses;
- The allegations;
- The date of interviews with the complainant(s), respondent(s), and witnesses and any explanation for delays in such interviews or for an interview not being conducted;
- Documents or other materials that were identified as relevant by the participants in the investigation;
- The details of interviews with participants in the investigation;
- The assessment of the parties and witnesses and the investigator's findings of fact; and
- The details of reporting the outcome of the investigation to the parties.
Ms. Johnston testified that she (or a designate) reviews the completed Findings Report to ensure that the investigator followed a fair process, collected relevant information, and applied applicable Walmart policies fairly and consistently. Also, the reviewer of the Findings Report determines if further information ought to have been sought, and whether any credibility findings were proper.
With respect to the Findings Report of the complaint of the two associates in this case, Walmart was not prepared to reveal: the interview content of any witness; documents or other materials identified as relevant by any participant in the investigation; and the investigator’s assessment of the parties and witnesses, the investigator’s assessment of compliance with the applicable Walmart policies, and the investigator’s findings of fact and recommendations. Ms. Johnston explained that Walmart’s rationale for partial disclosure of the Findings Report was that the redacted portions were not necessary to a determination by the Inspector as to whether the investigation was appropriate in the circumstances. To put it another way, Walmart says that the portions disclosed are sufficient for an Inspector to assess the appropriateness of the investigation.
In Ms. Johnston’s experience, investigations of alleged workplace harassment can and do uncover personal and confidential information disclosed by the participants in the investigation process, including sometimes personal medical information, information related to private family matters, and compromising photographs and text messages. Ms. Johnston testified that Walmart endeavours to keep this information confidential in order to protect the privacy interests of the witnesses in the investigative process, and to encourage their full participation. All Findings Reports are logged electronically in a case management system to which access is highly restricted. No paper copies are made, thus reducing the risk of disclosure of the Findings Report.
Decision of the Ontario Labour Relations Board
Vice Chair Patrick Kelly of the Ontario Labour Relations Board provided the following reasons for this decision to order Wal-Mart to produce to the inspector the full, unredacted Findings Report.
[16] The issue in this case is whether the Inspector is entitled to see the Findings Report in its entirety. It is worth noting that the Inspector has not made any order (or decided not to make an order), in relation to the merits of the worker complaint regarding the workplace harassment investigation into her complaint. At this point, the Inspector has simply required Walmart to let her see all of the content of the Findings Report. Walmart submits that this requirement exceeds the statutory powers of the Inspector, and that the redacted Findings Report that it is prepared to provide is sufficient to enable the Inspector to assess whether Walmart’s investigation of the harassment complaint was appropriate in the circumstances.
[17] I begin with some observations concerning the Act and the Inspector’s role and powers under the Act.
[18] An Inspector is appointed for the purposes of the Act (section 1 definition of “inspector”). The role of an inspector is to administer and enforce the Act and the regulations promulgated under the Act (subsection 6(1)). Inspectors are given a discretion to issue a range of orders where they find a violation of the Act and/or Regulations (section 57). And particularly relevant to this dispute, an inspector is granted a broad spectrum of powers in Part VII of the Act. Subsection 54(1) of Part VII reads:
54 (1) An inspector may, for the purposes of carrying out his or her duties and powers under this Act and the regulations,
…
(c) require the production of any drawings, specifications, licence, document, record or report, and inspect, examine and copy the same;
(d) upon giving a receipt therefor, remove any drawings, specifications, licence, document, record or report inspected or examined for the purpose of making copies thereof or extracts therefrom, and upon making copies thereof or extracts therefrom, shall promptly return the same to the person who produced or furnished them;
…
[19] In one of the cases cited by the applicant, Blue Mountain Resorts Ltd. V. Bok, 2013 ONCA 75 (CanLII), [2013] O.J. No 520; 2013 ONCA 75 (CanLII), the Court of Appeal, while confirming that the Act is a remedial public welfare statute that is to be interpreted liberally in order to serve its broad purpose and objective, noted at paragraph 26 that “[t]his generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.” I agree with counsel for the applicant’s submission that the powers under subsection 54(1), though broad in their scope, are limited in the sense that they may only be exercised by inspectors for the purposes of carrying out their statutory duties and powers, as expressly stated in the opening preamble of the provision. An inspector requiring an employer to produce a document for examination, for example, must be engaged in a bona fide activity grounded in the Act.
[20] That being said, the act of inquiring into a worker’s complaint by an inspector is obviously the exercise of an inspector’s statutory power of enforcement. The Inspector in this case was engaged in such an inquiry and was carrying out her investigative role. In The Corporation of the Municipality of Chatham-Kent 2017 CanLII 74130 (ON LRB) the Board was faced with a request to suspend an inspector’s requirement of the employer’s emergency services department to produce records associated with training programs and professional development pending a hearing of the main appeal of that requirement. The Board observed that the records were requested as part of the inspector’s investigation into a complaint regarding alleged deficiencies in the department’s training programs. The Board went on to refuse to suspend the inspector’s requirement, reasoning that a suspension of the requirement could have a significant impact on worker safety and could severely prejudice the investigation.
[21] The Act requires employers to prepare workplace harassment policies and to develop and maintain programs that provide for the reporting of incidents of workplace harassment and that set out how such incidents will be dealt with, among other things. Subsection 32.0.07 of the Act, which seeks to protect employees from workplace harassment, reads…
[22] As pointed out by counsel for Walmart, the Act does not expressly require employers to identify risks of workplace harassment, eradicate or prevent workplace harassment, or provide a harassment-free workplace. Moreover, a worker under the Act has no express statutory protection to refuse work because of workplace harassment. The Act does not apply the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28 to workplace harassment (whereas it does in respect of workplace violence). At one point prior to the passage of Bill 132 in 2016, which introduced the requirement to investigate workplace harassment complaints and incidents, the Board itself described the employer’s obligations under the workplace harassment provisions of the Act as “entirely procedural”.
[23] Employers are now, however, required to see that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances. Moreover, the Act says expressly that an investigation appropriate in the circumstances is one of the measures an employer must ensure is undertaken “[t]o protect workers from workplace harassment”. In this case, the issue for the Inspector was whether Walmart’s investigation, which serves the purpose of protecting workers from workplace harassment, was appropriate in the circumstances.
[24] As counsel for [Wal-Mart] noted, the Act does not clarify what the phrase “appropriate in the circumstances” means. Nor does the Act prescribe any particular outcome of, or set out any criteria that apply to, a workplace harassment investigation. Moreover, notwithstanding the introduction of an employer obligation to oversee the investigation of harassment complaints, Bill 132, the applicant argues, did not change anything about the strictly procedural and reactive nature of section 32.0.07’s requirements with which employers must comply to deal with workplace harassment. Indeed, the applicant submits, the Ministry of Labour’s own Workplace Violence and Harassment: Understanding the Law makes clear that the role of the inspector is not to resolve or mediate specific allegations of harassment or determine if the behaviour of any individuals constitutes workplace harassment, or award remedial relief to persons who experience such harassment. Furthermore, counsel for the applicant submits, section 4.15.2.3 of the Minister of Labour’s own Operations Division Policy and Procedures Manual (“the Manual”) pertaining to workplace violence and harassment recognizes that a complaint received by the Ministry of Labour Contact Centre concerning the appropriateness of a workplace harassment investigation is by its very nature a complaint concerning process only. That portion of the Manual in question instructs Contact Centre personnel that:
The event shall be flagged as Dedicated Harassment Enforcement Team (DHET) if the complainant alleges they were harassed and alleges the employer has not conducted an investigation that is appropriate in the circumstances or any other procedural complaint related to the employer’s investigation into alleged harassment such as failing to provide written results.In Walmart’s submission, the above excerpt suggests that the Act’s workplace harassment provisions are entirely aimed at procedural compliance by employers in response to the raising of workplace harassment complaints. Therefore, any suggestion by [the Ministry’s witness] that inspectors are entitled to determine whether an employer-led investigation reached appropriate findings and/or conclusions is entirely out of step with the Act and the guidelines that are issued by the Ministry of Labour as described above.
[25] Walmart may well be right ultimately that an inspector has no authority to make the sort of determinations that Mr. Boccinfuso referred to in his will-say statement. But that is not the issue currently before the Board. It may some day come squarely before the Board should an inspector make a substantive order that purports to remedy what is found to be an inappropriate investigation because, for example, the result reached by the investigator was ill-conceived or the investigation failed to inquire into all the relevant facts or canvass all the witnesses or was conducted in a biased fashion.
[26] What is before the Board is only whether the Inspector is entitled to see an entirely unredacted version of the Findings Report in the course of her investigation into a complaint about the appropriateness of the workplace harassment investigation commissioned by Walmart. Despite all of the able and thoughtful arguments put forth by counsel for the company, I have difficulty accepting that the Act, properly construed, leaves it to the company to determine what information recorded in the Findings Report the Inspector requires and does not require in order to carry out her statutory duty to investigate the complaints to which she was assigned. Even accepting without deciding that Walmart is correct - that the Act is concerned only with procedural compliance when it comes to an employer’s obligations pertaining to workplace harassment, and provides no substantive protection to workers from such harassment - in my view, the Inspector is entitled to see the entirety of what is clearly a relevant document in the determination of whether the investigation commissioned by Walmart was appropriate in all the circumstances. There could well be information contained in the redacted witness statements and the investigator’s assessment of credibility and findings of fact that sheds light on the appropriateness of the investigation even if, as argued by Walmart, appropriateness must be understood to mean procedurally appropriate. In any event, the Board in Hydro One Networks Inc., [2013] O.O.H.S.A.D. No. 45; 2013 CanLII 76812 (ON LRB) and the Director of Appeals in McDonnell Douglas Canada Ltd. (Re), [1990] O.O.H.S.A.D. No. 11 both expressed doubt that an inspector’s power to require production of documents is limited solely to the subject matter of the inspector’s inspection or inquiry.
[27] I accept Walmart’s concern for the consequences of disclosure of confidential and personal information in the Findings Reports generally. However, disclosure of such information to an inspector is protected by the prohibition in paragraph (a) subsection 63(1), which reads:
63 (1) Except for the purposes of this Act and the regulations or as required by law,
(a) an inspector, a person accompanying an inspector or a person who, at the request of an inspector, makes an examination, test or inquiry, shall not publish, disclose or communicate to any person any information, material, statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the regulations;
[28] In my view, disclosure of an unredacted Findings Report to an inspector who is bound by law not to disclose the information therein contained will have no effect one way or another on complainants and witnesses who participate in the company’s investigations of workplace harassment.
[29] To summarize: once the complaint by a Walmart employee concerning the company commissioned investigation of the workplace harassment complaints was assigned to the Inspector for determination, the Inspector was carrying out her statutory duty to inquire into and investigate those complaints, and was thereby entitled to exercise her discretion to require production and examine all the content of the Findings Report.
Commentary
As regular readers of this blog will know, I have been writing about workplace harassment issues since 2008. In support of the proposition that “prior to the passage of Bill 132 in 2016, which introduced the requirement to investigate workplace harassment complaints and incidents, the Board itself described the employer’s obligations under the workplace harassment provisions of the Act as “entirely procedural” Vice Chair Kelly referenced the Board’s previous decision in Ljuboja v Aim Group Inc, about which I wrote in my post Has the Ontario Labour Relations Board Finally Given Some Protection to Harassed Employees?
By and large, Wal-Mart is correct where it says “Bill 132 did not change anything about the strictly procedural and reactive nature of section 32.0.07’s requirements with which employers must comply to deal with workplace harassment.”
As repeatedly noted on this blog, the Workplace Harassment requirements of Ontario’s Occupational Health and Safety Act does not guarantee any substantive outcome to those complaining of workplace harassment. For example, while the law requires an employer to “ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances”, it does not prescribe what an employer must do if it finds the complaint of workplace harassment to be made out.
Taken to its extreme, under the OHSA regime an employer could receive a complaint of workplace harassment, conduct an investigation into the complaint, find that the complaint was justified, advise the complainant of the finding, and then just carry on with life. OHSA does not tell the employer what to do with that finding.
Does that mean that, pursuant to OHSA, an employer could maintain the employment of an employee it now knows to be a serial workplace harasser? In my opinion, yes. There is nothing within OHSA that enables the Ministry to order the employer to actually do something about the harassment underlying the complaint.
So does that mean the employee, who has been the subject of the workplace harassment, has no legal rights? Not exactly. If the employer knows, as a result of an investigation it commissioned, that the employee has been subjected to workplace harassment, yet refuses to do anything about it, then the employee may well have a claim for common law constructive dismissal. While a blunt legal instrument, and one not to be used before the taking of considered legal advice, a constructive dismissal claim may provide the employee with some form of remedy.
So what does all this mean? Well, let’s go back to the two Wal-Mart employees who made the complaint about their team lead. Do they care about the academic nature of the foregoing procedural analysis? I am prepared to wager good money they do not. They likely just wanted the workplace harassment issues to be dealt with by head office. Whether anything actually happened is unknown, but I suspect, given that the Ministry was called, they were unhappy with the results of the investigation.
The complainant employees, once they receive the results of their complaints have no further statutory rights under OHSA. Put another way, once Wal-Mart has satisfied its procedural duties to receive, investigate, and report, it has complied with the law.
If either the complainant or the respondent has concerns about how the investigation was conducted, then it can complain to the OLRB that the investigation was not “appropriate in the circumstances.” If the Board agrees with that allegation, then it may require the employer to conduct a further investigation, perhaps with an investigator assigned by it. (On this point, see my post Labour Board Refuses to Appoint Alternate Workplace Harassment Investigator.)
The Board may also require that the employer produce to an inspector, appointed by the Ministry, the while of its investigation file. In this respect, I believe the decision in this Wal-Mart case to be the correct one. How can an inspector determine whether the investigation was “appropriate in the circumstances” if she is unable to review the whole of the file?
But, again, neither of those things guarantee a different outcome for those involved.
Takeaways for Employers
The takeaway for employers from this case is that it pays to have good workplace harassment policies and to retain proper, experienced workplace investigators who will produce good reports and files. I have little doubt that Wal-Mart’s policies, procedures, and reports all met the procedural requirements of OHSA.
But not all employers are quite as large as Wal-Mart. Indeed, very few even get close.
For employers experiencing their first complaint of workplace harassment, the best advice is to seek advice and guidance from someone with experience with the subject.
Takeaways for Employees
The advice for employees who believe they are being harassed in the workplace is to be patient and seek advice. While in most cases the employee will be prudent in making a complaint of workplace harassment to his employer via the company’s workplace harassment policy and then waiting to receive the results, that may not always be the case. Navigating workplace harassment complaints, especially given the fact that every employer has the right to establish their own policies and procedures, can be especially difficult. Missteps can be costly, time-consuming, and frustrating.
Contact Me
Have a workplace harassment issue? Need a policy with respect to workplace harassment? Need someone to conduct an investigation into incidents and complaints of workplace harassment (or just want some guidance and advice on how to do one in-house)? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law. He has previously taught both Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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