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The Scope of the Duty to Investigate

The Ontario courts have recently clarified the scope of an employer’s duty to investigate instances of workplace harassment, emphasizing that this obligation does not stop merely because a complaint hasn’t been made.

In Metrolinx v Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, the Divisional Court quashed an arbitrator’s decision reinstating five employees who had been terminated for cause following the employer’s finding that they had committed workplace sexual harassment. Like many colleagues in a workplace, these employees were part of an external group chat. In this group chat, they made numerous derogatory and sexist remarks regarding another female employee. This employee reported these comments to her supervisory after they came to her attention, but she did not make a formal complaint because she specifically didn’t want to take it any further. The matter did not go any further from there.

Not too long after, the employer’s Human Resources department learned of these messages from another source and decided to commence an investigation. This investigation ended with a finding that these employees committed workplace sexual harassment. They were terminated with cause.

The five employees commenced a grievance. The arbitrator reinstated the employees, finding 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. The arbitrator found that the employer could not conduct a fair investigation because it operated as both the complainant and investigator in these circumstances.

On judicial review, the Divisional Court disagreed. 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 law does not say that the employer should cease its investigation if the affected employee refuses to make a formal complaint or participate in the investigation. The words of section 32.0.7(1)(a) of the Occupational Health and Safety Act obligates the employer to conduct an investigation into both incidents and complaints of workplace harassment.

The Court’s ruling is unequivocal: “A victim’s reluctances to report or complain…cannot relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.” An employer being prohibited from investigating an incident of harassment if the victim were unwilling to complain is inconsistent with the reality of many workplaces where employees may be fearful to bring forward a complaint out of fear of reprisal or other negative consequences. The Court sent the matter back for another determination, finding that the arbitrator fundamentally misinterpreted the law.

There are several important lessons that stem from this decision. First, the decision makes it clear that an employer can fail in their statutory duty to investigate even if a complaint is not made. Employers must investigate all incidents of workplace harassment, whether a complaint is made or not. This duty is owed not only to the victim of harassment, but to all employees in the workplace. As such, the decision further suggests that an employer’s failure to investigate an instance of harassment affecting one employee could expose it to liability stemming from a claim by another employee, even if that employee was not directly impacted by that particular instance of harassment. The failure to investigate, as a whole, could contribute to the development of an unsafe or toxic workplace.

Second, this decision poses an important lesson for investigators conducting workplace investigations. Investigators should not make assumptions based on the fact that the victim of the harassment is unwilling to make a complaint or otherwise participate in the investigation. There are a myriad of reasons as to why an employee may not be willing to come forward, and the law does not impose on the employee an obligation to participate in the investigation or report harassment.

Finally, this decision highlights the importance of retaining an independent investigator in circumstances that warrant it. The five employees were successful in the first instance in part because the employer acted as both complainant and investigator and was therefore unable to conduct a fair and impartial investigation. Although the Court later rejected that argument, it shows that an independent investigator from the outset may have been key and may have saved the employer costs in the long run by not having to seek a review of the arbitrator’s decision. Our experienced roster of workplace investigators at Resolv’d can assist with discharging your duty to provide a fair, thorough, and independent investigation.

 

– Nicolas Guevara-Mann, Associate Lawyer

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