It is well established that an employer owes its employees various duties and obligations. Most obviously, an employer must provide the employee with work and must provide them with pay for that work. Less obvious, perhaps, is an employer’s duty to provide a safe work environment. Tied to this duty, and maybe even less obvious, is an employer’s duty to conduct workplace investigations in cases of alleged wrongdoing or employee misconduct.
Section 32.0.7 of Ontario’s Occupation Health and Safety Act (“OHSA”) requires employers to conduct investigations into incidents of workplace harassment and inform the employee of the results of the investigation and of any corrective action that will be taken. Workplace harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” This definition contains objective and subjective elements. The comment or conduct will still constitute harassment even if the individual does not intend to harass their co-worker, so long as a reasonable person would’ve known the comment or conduct is unwelcome. The jurisprudence confirms this duty and holds that the duty arises whether the alleged harasser is also an employee of the employer or not.
The government of Ontario has provided guidance for employers with respect to fulfilling this duty when allegations of harassment arise. The investigation should be taken promptly (within 90 days) and be objective, thorough, and confidential. The employer should interview the employee who brought the complaint and all relevant witnesses. The alleged harasser should always be given an opportunity to respond to the allegations, and an employer should make reasonable efforts to interview the alleged harasser if they are not an employee. The employer should collect and review all relevant documentation and ensure they are taking notes and statements during the interviews. Finally, the employer should prepare a written report summarizing the allegations, the steps taken during the investigation, the response from the alleged harasser, and the evidence. The report should set out the ultimate findings and conclude whether or not harassment occurred. Then, the employee must be provided with the results of the investigation.
An employer also has a duty to investigate stemming from their obligations under section 5 of Ontario’s Human Rights Code (the “Code”) to provide equal treatment with respect to employment without discrimination. In a frequently cited quote from Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, the Human Rights Tribunal of Ontario explained that “[i]t would make the protection under s. 5 to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it…The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.” Evidently, the Code creates another source of the duty to investigate.
The public policy justifications for creating this duty on an employer are clear. The goal is to ensure a safe work environment, free from harassment and discrimination. Without this duty, employers could simply sit idly by, and workplaces could easily become toxic with the most vulnerable being affected the most. The Human Rights Tribunal has stated that a “failure to investigate has an inimical effect on the public policy of fairness and freedom from discrimination embodied and promoted by the Code. The respondent who fails to investigate a complaint of discrimination essentially ensures that if discrimination is occurring, it will continue” (Islam v Big Inc. (c.o.b. Le Papillon on the Park), 2013 HRTO 2009).
An employer can be liable for damages if they fail to investigate complaints. Employers are not required to be perfect, but their efforts in investigating a complaint must be reasonable (Lagana v. Saputo Dairy Products Canada, 2012 HRTO 1455). An investigation should be conducted even where an employer perceives the complaint as minor. Interestingly, the Human Rights Tribunal has held that a failure to investigate can attract liability on the employer, even if the tribunal ultimately dismisses the underlying allegations of discrimination (Islam v. Big Inc.). This means that an employer can even be liable where no actual discrimination or harassment occurred if they failed to take any steps to investigate the alleged discrimination or harassment.
Although an employee can pursue damages for harassment or discrimination against the employer, there is no specific cause of action for damages for a breach of the workplace investigation provisions in the OHSA. Therefore, an employee would have to ground their claim in negligence for failing in this regard. With respect to enforcement, section 55.3 of the OHSA permits an inspector to order that an employer conduct an investigation.
Failing to investigate also has other repercussions in that it may provide a basis for a finding of constructive dismissal. The Supreme Court of Canada in Potter v New Brunswick Legal Aid Commission, 2015 SCC 10 held that a constructive dismissal occurs when the employer engages in conduct which would lead a reasonable person to believe that they no longer intend to be bound by the terms of the employment contract. This can occur where continued employment becomes intolerable. When this happens, the employee has the choice of either accepting that conduct or treating the conduct as a repudiation of the employment contract and suing for wrongful dismissal. If an employer does not investigate instances of misconduct and this misconduct persists, it is easy to see how continued employment may become intolerable. As such, ensuring a proper investigation is conducted can further reduce the risk of being found liable for constructive dismissal and wrongful termination damages.
In conclusion, it is clear that an employer has a duty to investigate a broad range of different types of misconduct that occurs in its workplace. Understanding this duty is important for employers and employees alike. From an employee perspective, this duty can serve to protect your rights and ensure your complaints are taken seriously. From an employer perspective, better understanding the duty will assist in knowing when further action is required after receiving a complaint. Not only will a properly conducted investigation reduce the risk that you will be exposed to liability, it will also ensure a more safe and positive workplace for you and your employees.
– Nicolas Guevara-Mann, Associate Lawyer
