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Uncooperative complainant? No written complaint? Employer must still investigate
Written by Alison Renton & Ryan Carroll
Employers in Ontario have a legal duty to investigate incidents of harassment that come to management’s attention – even if the employee who was targeted doesn’t cooperate and hasn’t filed a formal complaint.
That’s the takeaway of a recent Divisional Court decision, Metrolinx v Amalgamated Transit Union, Local 1587,[1] which affirmed that an employer has both the right and the responsibility to investigate harassment issues.
What happened?
The investigation involved five employees who exchanged inappropriate and demeaning text messages about female colleagues including Ms. A in a private WhatsApp group. Ms. A became aware of these messages and obtained screenshots. She later reported this information to her manager. Ms. A did not file a formal complaint and did not want the matter investigated. But Metrolinx initiated an investigation after its HR department became aware of the messages.
Ms. A chose not to participate in the investigation. She declined multiple interview requests from the workplace investigator. She also refused to disclose information including who provided her with screenshots of the WhatsApp group chat. Ms. A noted the investigation was a source of stress and was distracting her from her duties.
The investigation was completed despite Ms. A’s refusal to participate and led Metrolinx to terminate all five employees for just cause. The employees grieved claiming they were unjustly dismissed.
The Grievance Settlement Board
The grievance was heard before the Grievance Settlement Board.[2] The arbitrator accepted the grievance and overturned the terminations. The arbitrator decided Metrolinx overstepped by investigating off-duty conduct. Although the messages were inappropriate, Metrolinx could not discipline employees for behaviour that occurred outside the workplace on their own time through a platform they believed was secure.
The arbitrator also determined there was no harassment for Metrolinx to investigate. The arbitrator concluded that Metrolinx’s policy prevented Metrolinx from investigating incidents of harassment unless a complaint was made. Since Ms. A did not make a formal complaint, Metrolinx could not complete a fair and impartial investigation.
Judicial Review at Divisional Court
Metrolinx applied for judicial review and was successful in overturning the arbitrator’s decision.
The Divisional Court concluded that the arbitrator’s decision was unreasonable because it overlooked the employer’s legal duty to investigate workplace harassment. Employers have a statutory obligation under the Occupational Health and Safety Act (OHSA) to investigate “incidents” of workplace harassment, regardless of whether the victim files a complaint or is uncooperative. This duty to investigate is owed to all employees, not only the complainant. As the Court noted, every employee has a right to work in an environment free of harassment, which can only be achieved if management can investigate potential harassment that comes to its attention.
The Court dismissed the arbitrator’s conclusion that Ms. A’s unwillingness to file a complaint or cooperate with the investigation meant she hadn’t really been harassed. The Court noted such reasoning relies on stereotypes and myths previously rejected by the Supreme Court of how a victim of sexual harassment or assault can be expected to behave. The arbitrator should have considered other realistic explanations as to why Ms. A did not file a complaint, such as fear of reprisal and possible humiliation. In any event, the arbitrator was wrong to suggest that because she didn’t file a complaint, Metrolinx shouldn’t have investigated. As the Court pointed out, it is even more important for employers to proactively investigate and address harassment in cases where victims fear reprisal and are afraid to come forward on their own.
The Court went on to conclude that the arbitrator over-emphasized the terminated employees’ right to privacy in their personal WhatsApp messages. The messages became a workplace issue when they made their way into the workplace and were brought to the attention of Ms. A. The Court added that this was unsurprising considering the messages were shared in a social media group chat. Messages could easily move outside the group chat as it was unclear who had access to the conversation.
Takeaways
This decision reaffirms that:
- employers have a statutory obligation under the OHSA to ensure an investigation is conducted into all incidents of workplace harassment.
- an investigation must take place even if no formal complaint has been made or the complainant is uncooperative.
- employers cannot rely on what is presumed to be the expected conduct or reaction of a subject of sexual harassment. Refusing to file a complaint or participate in the investigation does not mean that no harassment occurred.
- employees can be disciplined for messages over a social media platform outside of normal work hours if it impacts the workplace. Although the conversation may be considered private, messages can be easily copied and forwarded to others including colleagues.
- 2024 ONSC 1990 (CanLII)
- Amalgamated Transit Union – Local 1587 (Juteram et al) v The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB)