Employer's Duty to Investigate Workplace Harassment Complaints

In a recent decision involving unionized employees, the court clarified the scope of an employer’s duty to investigate instances of workplace harassment, particularly by emphasizing that this obligation exists even if an employee does not file a workplace harassment complaint.

In Metrolinx v Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, five co-workers were part of an external group chat on the social media messaging platform, WhatsApp. In this group chat, they made numerous derogatory and sexist comments on their personal cellphones regarding another female employee, such as that she performed sexual favours for career advancement. After finding out about these comments, the employee reported the incidents to her supervisory. However, she did not file a formal complaint with the employer because she did not want the matter investigated.

Once the HR department became aware of these allegations, the employer conducted an investigation the Employee Labour Relations Manager, which included interviews with each of the five employees and other witnesses. During the course of the investigation, the investigator became aware of additional allegations of inappropriate comments allegedly made by other employees in the WhatsApp group chat. As a result of the investigation, the employer found that these employees committed workplace sexual harassment, and which led to their termination for cause.

After the terminated employees filed a grievance, the arbitrator reinstated their employment. Among other things, the arbitrator found that the messages occurred outside the workplace on their own time, while using personal cell phones that they reasonably believed and intended to be private. In the arbitrator’s view, the employer could not conduct a fair investigation because it operated as both the complainant and investigator in these circumstances (i.e., it did not retain external workplace harassment investigator). Additionally, the arbitrator found that the employee’s decision not to file a workplace harassment complaint about the incidents ” demonstrated that she did not believe that she was “the victim of sexual harassment and/or … experiencing a hostile or poisoned work environment,” and therefore “the Employer could not substitute itself as the complainant under the Policy.”

On judicial review the court disagreed with the arbitrator’s decision. The Court held that the arbitrator failed “to recognize that while some victims of workplace harassment are reluctant to report harassment or participate in the resulting investigation, their employer remains obligated to investigate such behaviour and to protect the workplace from a hostile or demeaning work environment.”

The court noted that Ontario employment law does not say that an employer should cease investigating workplace harassment concerns if an affected employee refuses to make a formal complaint or participate in the investigation. In fact, the rule in section 32.0.7(1)(a) of the Occupational Health and Safety Act requires an employer to conduct an investigation into both “incidents and complaints” of workplace harassment.

Take-Away Lessons

There are several important lessons that stem from this recent court decision when it comes to workplace harassment.

First, under Ontario’s health and safety legislation, employers must investigate all “incidents” of workplace harassment regardless of whether an impacted employee makes a complaint. This employer duty is owed not only to the victim of harassment, but to all employees in the workplace since the rule is to prevent workplace harassment entirely. As such, the decision further suggests that an employer’s failure to investigate an instance of workplace harassment affecting one employee could expose it to liability stemming from a claim by another employee who may not have been directly impacted. In other words, an employer’s failure to investigate workplace harassment could contribute to the development of an unsafe or toxic workplace, which can affect other employees indirectly.

Second, this decision raises the important point that employers should not assume they have no obligation to act simply because an employee did not file a formal workplace harassment. In fact, simply learning of an incident of workplace harassment engages an employer’s legal obligation to conduct a workplace harassment investigation. In addition to the requirement to ensure a harassment-free workplace, employers must be mindful of the fact that sometimes employees are too fearful of filing a workplace harassment complaint or participate in an investigator to avoid workplace consequences, like gossip or retaliation. In fact, while employment law in Ontario does require an employee to participate in a workplace harassment investigation or even report harassment, an employer’s obligation to investigate and prevent workplace harassment remains.

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