Under the Occupational Health and Safety Act (“the OHSA”), an employer is required to conduct an investigation that is “appropriate in the circumstances” when an incident of harassment comes to their attention. What qualifies as “appropriate,” and what happens when an investigation falls short, can sometimes feel a bit murky for the parties involved. Even if an investigation satisfies OHSA requirements, it may not meet the evidentiary standards applied in the workers’ compensation arena.
In Decision No. 1543/23, the Workplace Safety and Insurance Appeals Tribunal (“the Tribunal”) had to grapple with an investigation process as it considered a worker’s claim for initial entitlement for chronic mental stress resulting from harassment that began in 2014. While the employer had conducted an internal investigation, the Tribunal had to effectively revisit the underlying events and assess whether workplace harassment had occurred in order to make a decision on initial entitlement.
The worker was employed as an armoured guard, whose role was to pick up cash from customers. The role involved working with a partner, and in 2014, the worker was assigned to work with a new partner (“MG”) and began to complain to the employer about MG’s behaviour soon thereafter. Following a conversation between the worker and her manager in May 2014, no further action was taken until November 2014, when the worker made a more formal complaint, alleging that MG’s conduct constituted harassment, including inappropriate comments about her sexuality and gender identity, derogatory comments about her intelligence, yelled at her and threatened her.
The employer interviewed the worker and MG, and in a letter dated November 26, 2014, the worker was advised that the employer had concluded that MG had not violated the Workplace Discrimination and Harassment Policy. In addition, since the worker admitted during the investigation process that she and MG would separate due to her fear of provoking MG’s anger - an act that went against company policy - the employer also disciplined the worker by giving her a five-day unpaid suspension.
As a result of the harassment complaint, the worker and MG were both ordered to attend counselling, which did not occur until approximately a year and a half later.
Although the worker and MG were no longer working as partners, the worker said that she continued to experience harassment in the workplace. In April 2017, the worker sought medical attention for stress that she attributed to the work environment. She was diagnosed with acute stress reaction, depression and anxiety, and the medical reports pinpointed the events that began in November 2014 as the causal events.
The employer argued, in part, that there was no substantial workplace stressor, as required by Operational Policy Manual Document No. 15-03-14 (“Chronic Mental Stress Policy”), because MG’s conduct did not, in their view, rise to the level of harassment. In making this argument, the employer relied on its own investigation findings from 2014. The employer contended that issues of interpersonal conflict and disciplinary issues were the predominant causes of the worker’s condition.
The Panel considered the evidence that the worker had provided to the employer at the time of the initial harassment complaint and also questioned her on the alleged incidents of harassment. The Panel noted that the worker’s testimony was provided under oath and was tested by both parties and the Panel, whereas the Tribunal had no direct evidence from MG about the incidents, as the employer did not call MG or any other witnesses. In addition, at the time of the original investigation, MG had admitted to some incidents under investigation, while attempting to “put his own spin” on them, attempting to downplay the severity of his actions. As such, the Panel accepted that the worker’s accounts of her interactions with MG were “largely accurate” and found that MG’s conduct rose to the level of harassment.
With respect to the employer’s position that harassment had not occurred, given that their 2014 investigation found the allegations to be unsubstantiated, the Panel placed no weight on the conclusions drawn from that investigation. In so finding, the Tribunal noted that:
- The investigation was conducted in-house, not by an independent third party
- There was no evidence provided about the definition of “harassment” under the employer’s policy – and, in fact, the worker alleged that no such policy existed in 2014
- There was no evidence provided about any formal investigation procedure that was followed
- There was no formal investigation report, and the letter to the worker informing her of the conclusions contained no analysis or explanation
The Panel determined that the worker was the subject of harassment in 2014 within the meaning of the Chronic Mental Stress Policy, that the harassment was the predominant cause of the worker’s psychological condition, and the claim for initial entitlement was granted.
This decision is interesting for a couple of reasons. First, we see the Tribunal stepping into the shoes of a workplace investigator. While the employer likely fulfilled its obligations under OHSA, that does not displace the role of a Tribunal Panel or Vice-Chair in determining entitlement.
Second, this case should serve as a reminder to employers to thoroughly document all aspects of the workplace investigation process, including a written report that sets out clear reasons and findings. Even if the OHSA does not require that level of documentation and disclosure, it likely will be necessary in the context of a workers’ compensation appeal.
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