In a recent Ontario Labour Relations Board decision, the Board found that the Occupational Health and Safety Act does not require individuals who conduct workplace harassment investigations to hold any particular qualifications.
In Erin McKenzie v Orkestra SCS Inc. (2023 CanLII 13891 ON LRB), Ms. McKenzie served as General Counsel and CFO of Orkestra, and was terminated with 6 months notice on July 8, 2021. On August 13, 2021, Ms. McKenzie raised a formal harassment complaint against the company’s CEO.
Orkestra appointed two investigators to investigate the complaint, but Ms. McKenzie raised a conflict of interest issue as the first investigator was previously a direct report, and disputed qualifications of the second investigator. Ms. McKenzie filed a complaint with the Ministry of Labour regarding the first investigator’s appointment. During that time, the first investigator was removed from the investigation and Orkestra appointed a new investigator. When the second investigator contacted Ms. McKenzie, she refused to comply with the investigation and asked the investigator for their credentials.
Ms. McKenzie requested the Labour Board to appoint a new investigator of their own choosing, but the Board dismissed her application. The Board found that the Occupational Health and Safety Act does not specifically require those who investigate workplace harassment complaints to have any particular qualifications, and Ms. McKenzie did not offer any evidence to suggest that the investigators appointed by Orkestra were incapable of performing an appropriate investigation.
Ms. McKenzie’s application to the Labour Board for a new investigator was ultimately dismissed. The Occupational Health and Safety Act requires employers to implement policies and programs to address workplace harassment and to ensure that investigations into incidents and complaints of workplace harassment are appropriately conducted in the circumstances. In this circumstance, there was no evidence to suggest that the second investigator appointed by Orkestra was unable to conduct an appropriate investigation.
Takeaways and Impact
This decision affirms the importance of complying entirely with the requirements of the Occupational Health and Safety Act with respect to workplace harassment policies and programs. Employers must have policies and procedures in place to investigate workplace harassment complaints, and must ensure that these investigations are appropriately performed in the circumstances. When appointing investigators, employers should know that the Occupational Health and Safety Act does not require investigators to have specific qualifications.
PooranLaw will continue to monitor the ongoing legal developments related to cases like these. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
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