Understanding OHSA procedural obligations
Exclusive to Canadian HR Reporter from Rudner Law.
Many employers assume that if a workplace harassment complaint is ultimately determined to be unfounded, the organization faces little or no legal risk.
The decision in Ontario Public Service Employees Union (Bauer) v. Ontario (Liquor Control Board) demonstrates why that assumption can be costly.
The case serves as an important reminder that an employer's obligations under Ontario's Occupational Health and Safety Act (OHSA) are procedural as well as substantive. Even where an investigation concludes that no workplace harassment occurred, an employer may still be found in breach of its statutory obligations if it fails to follow the required process.
For HR professionals, the lesson is clear: a workplace harassment investigation is not judged solely by its outcome. The manner in which the complaint is investigated, documented, and communicated can be just as important as the ultimate findings.
Workplace harassment obligations under OHSA
The OHSA defines workplace harassment as engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome. The legislation also recognizes that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
To protect workers from workplace harassment, the OHSA requires employers to conduct investigations into workplace harassment incidents and complaints that are appropriate in the circumstances.
Employers must also inform both the complainant and the respondent in writing regarding the results of the investigation and any corrective action that has been taken or will be taken.
The Bauer decision
The employee in Bauer filed several workplace harassment complaints arising from a conflict with a co-worker. Her union subsequently filed a grievance on her behalf, alleging that the employer breached its obligations under OHSA. The matter was heard by an arbitrator from the Grievance Settlement Board.
After reviewing the evidence, the arbitrator concluded that none of the incidents constituted workplace harassment. In one of the key incidents, two employees became involved in a heated disagreement. Both individuals behaved inappropriately, and the arbitrator found that the conflict was mutual, with no identifiable harasser or victim.
The arbitrator reached similar conclusions regarding the employee's other complaints. While the incidents reflected workplace conflict, they did not meet the legal definition of workplace harassment.
From a substantive perspective, the employer was successful. The allegations were not upheld.
Employer fails to follow required process
Despite successfully defending the harassment allegations, the employer was found to have failed to comply with several procedural requirements under the OHSA.
The employer acknowledged that it had not informed the employee in writing of the results of certain investigations or of any corrective action taken. It also conceded that one of the employee's complaints had not been investigated at all.
The employer argued that these obligations were not triggered because the conduct in question was ultimately found not to constitute workplace harassment. The arbitrator rejected that argument.
The decision emphasized that the duty to investigate is triggered by a complaint alleging workplace harassment, not by a subsequent finding that harassment actually occurred. The OHSA refers to workers who have "allegedly experienced workplace harassment" and to an "alleged harasser," making it clear that an employer's obligations arise when allegations are made.
Because the employee's complaints alleged facts that, if proven, could have constituted workplace harassment, the employer was required to investigate and provide the required written notifications. Its failure to do so constituted a breach of OHSA.
Process matters as much as outcome
The most important takeaway from Bauer is that procedural compliance and substantive findings are separate issues.
An employer may correctly determine that no workplace harassment occurred and still be exposed to liability if it fails to comply with the procedural requirements imposed by the OHSA.
This distinction is particularly important for HR professionals. Workplace complaints often arise in circumstances where managers or supervisors believe the allegations are exaggerated, unsupported, or unlikely to succeed. The temptation can be to dismiss the complaint informally or conduct only a limited review.
The Bauer decision demonstrates the risk of that approach. Employers cannot bypass the investigation process because they believe a complaint lacks merit. Nor can they treat an investigation as complete without communicating the results to the parties involved.
Notably, although the arbitrator found that the employee had not been harassed and had not been subjected to an unsafe workplace, the employer was nevertheless ordered to pay $4,500 in general damages because of its procedural failures.
Conclusion: comply with OHSA
The Bauer decision reinforces an important principle: compliance with the OHSA depends not only on reaching the right conclusion, but also on following the required process.
Even where a workplace harassment complaint is ultimately found to be unfounded, employers remain responsible for conducting an appropriate investigation and communicating the results as required by law. Failing to do so can create liability independent of the underlying complaint.
A well-executed investigation process remains one of the most effective ways to reduce legal risk, demonstrate procedural fairness, and help employers meet their statutory obligations.
Because workplace harassment complaints can give rise to significant legal obligations and potential liability, HR professionals should consider obtaining legal advice when such complaints arise. Early legal guidance can help ensure that investigations are conducted appropriately, statutory requirements are satisfied, and the organization's legal obligations are met throughout the process.
Alex Minkin is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].
