From Case To Practice: What Makes A Workplace Harassment Investigation “Appropriate In The Circumstances?”

The Case¹

Alyssa Gassi began working as a Municipal Prosecutor for The Corporation of the County of Lambton (the “County”) on October 28, 2024. Her employment was terminated on a with-cause basis on April 4, 2025. During her employment, on March 3, 2025, Ms. Gassi submitted a complaint of harassment to the County in which she identified multiple individuals whom she alleged spoke negatively about her, failed to share information with her, spoke to her in an unprofessional, condescending, and intimidating manner, laughed at her, and more. A Senior Labour Relations Consultant (the “SLRC”) with the County conducted an investigation into her complaint, in which he interviewed Ms. Gassi and the Manager of Court Services, after which he concluded “that there was no harassment or toxic work environment as defined by the Workplace Harassment Policy, but that the workplace relationships in the court required improvement.” On March 31, 2025, the SLRC met with Ms. Gassi and advised her of his conclusion that the concerns that she raised did not support a claim of workplace harassment and discrimination.

Ms. Gassi filed a complaint with the Ministry of Labour alleging, among other things, that the County did not conduct an investigation into her complaint of workplace harassment as required under the Occupational Health and Safety Act (the “Act”). An Inspector attended at the County in April 2025 and found no violation of the Act and issued no orders. Ms. Gassi filed an appeal under section 61 of the Act. In the decision, the Ontario Labour Relations Board Vice-Chair summarized some of the issues on appeal¹ as follows:

a) whether the investigation conducted by the County into Ms. Gassi’s harassment complaint was “appropriate in the circumstances” as required by section 32.0.7(a);

and

b) whether the results were delivered in compliance with section 32.07(1)(b) of the Act.

1. What are the expectations of an investigation under the Act?

As noted in the issues listed above, an investigation of a complaint of workplace harassment under the Act is expected to be “appropriate in the circumstances.” The Act further states that following an investigation, the parties (if workers) are entitled to be informed in writing of the results of the investigation and any corrective action that has, or will be, taken. The decision notes that an Inspector may order a workplace harassment investigation be conducted “at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person,” providing some guidance to employers regarding expectations of an investigation.

2. What makes an investigation reasonable in the circumstances?

What makes this case interesting and of great benefit to employers is that, prior to this decision, there has been relatively little guidance from decision-makers on how to interpret this requirement of the Act. After noting that the Act is to be given a large, liberal, and purposive interpretation, and having acknowledged that the government produced a Code of Practice that provides employers with guidance on the minimum steps necessary to conduct an investigation, the Board wrote:

In order to be appropriate in the circumstances, an investigation must fulfil the stated purpose of the provision, namely, to protect workers from workplace harassment…Analyzed from a procedural perspective, the focus must be on whether the investigation was fairly and appropriately undertaken in a manner that would permit an employer to determine whether workplace harassment has occurred. In order to be “appropriate in the circumstances”, an investigation must include a consideration of the rights and interests of both the complainant and the responding party(ies) to the complaint as well as the integrity of the investigation itself…the investigator must, at a minimum, have some understanding of the workplace harassment and reprisal provisions of the Act and the employer’s own policies and ideally some experience with investigations and investigative procedures.

3. Did the County’s investigation meet the standard?

In its decision, the Board notes both the strengths and weaknesses of the investigation conducted by the County. In terms of strengths, the Board noted that the employer took the complaint seriously, utilized an investigator who knew about the Act and the County’s workplace harassment policy and program, maintained confidentiality, and that the investigator obtained an understanding of the complaint through a review of documents and by interviewing the complainant.

That said, the Vice-Chair ultimately concluded that the investigation was not appropriate in the circumstances because:

• The investigator did not speak to (or even give notice to) most of the respondents in the complaint (and provided no evidence to the Board on how the information provided from the Manager of Court Services alone was determinative of the issues).
• The investigator did not provide Ms. Gassi the opportunity to respond to the evidence of the Manager of Court Services that the investigator seemed to find determinative of the issue.

The Board did find that the County sufficiently communicated to Ms. Gassi the results of the investigation and that she was not entitled to the full investigation report.

What does this mean for the practice…

The Board decision made clear that employers have a great deal of latitude in determining what type of investigation would be appropriate in the circumstances.

For example, the Board notes that an employer is free to use an internal investigator, as long as that investigator has the requisite knowledge and training to conduct workplace investigations. It is worth noting that the decision explicitly notes that the investigator in this case did have investigation training without stating when, or how frequently, they were trained. This offers a nice reminder that a defensible investigation practice likely requires ongoing and updated learning.

In addition, the Board wrote that an investigation need not necessarily investigate every allegation in a complaint, nor does an investigator need to interview everyone identified in a complaint, to be appropriate. While typically an investigation will necessitate interviewing all parties and relevant witnesses, this decision acknowledges that might not always be necessary, as long as the investigator can support their findings based on the evidence gathered and the parties were treated fairly given the chance to comment on contradictory evidence upon which the investigator intends to rely.

Often, when delivering our investigation training, I am asked whether a threshold assessment could ever be considered “appropriate in the circumstances” under the Act. Again, we get some guidance here, as the Board notes that an investigation approach could be formal or informal, and could potentially even include mediation/fact-finding subject to the circumstances and with consent of the parties. As I read this decision, an organization could conclude an investigation following a threshold assessment if the information gathered is determinative of the issue and any affected parties are given the chance to comment on the evidence upon which the investigator is basing their decisions (eg, if the investigator is relying on documents to conclude that the allegations do not amount to harassment, they should ensure that the complainant has the opportunity to comment on the documents).

We know that many organizations have limited time and resources to address an increasing number of complaints of harassment in the workplace. What this decision makes clear is that a well-trained investigator can exercise judgment relating to the scope of their investigations if (1) they have a clear and defensible evidentiary basis for their findings and (2) they ensured that the parties to the complaint had an opportunity to respond to any contradictory evidence before those findings were made.

Footnote

1 Ms. Gassi also made an allegation of reprisal relating to her termination that is addressed in the decision but which I will not be addressing in this blog.