Section 5(1) of the Ontario Human Rights Code (the “Code”) provides that “every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.” Section 5(1) essentially imposes an obligation on employers to ensure that their workplaces are free from discrimination. The caselaw is clear that the obligation for employers to ensure a discrimination-free workplace includes the duty to investigate complaints of discrimination by employees.
Does an employer still have a duty to investigate when a departed employee raises a Code-based complaint several months after they have been terminated? The Ontario Human Rights Tribunal recently provided important guidance on this question in Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312.
Background and Issue
The Applicant, a former personal trainer at Goodlife, was terminated in January 2018 for performance related issues. Approximately 7 months following her termination (July 2018), the Applicant alleged that she was sexually harassed by a co-worker while working as a personal trainer from November 2017 to January 2018 and brought a Human Rights Application against Goodlife for failing to investigate her complaint. Goodlife did not dispute that the former personal trainer may have been subjected to harassing comments by her co-worker, however, Goodlife maintained that it did not breach its duty to investigate the Applicant’s complaint.
The Applicant alleged that she made complaints about the harassment before and after her termination, however Goodlife maintained that it only became aware of the complaints after the Applicant’s termination. Goodlife alleged that concerns arose about the Applicant’s performance and professionalism early on in her employment. In response, Goodlife held meetings with the Applicant to discuss her performance issues on December 14 and 19, 2017. The Applicant alleged that she informed Goodlife of her sexual harassment complaint during the performance management meetings. Goodlife denied that the Applicant raised a complaint of sexual harassment during the performance management meetings and produced internal correspondence from the meetings, including emails and memos, to corroborate its position.
The issue the Tribunal assessed was whether Goodlife breached its legal duty to investigate the Applicant’s complaint under the circumstances. Was Goodlife aware of the Applicant’s complaint while she was still and employee and, if not, did Goodlife have a duty to investigate the Applicant’s complaint once it became aware of her complaint 7 months following her termination?
Decision
The Tribunal found that the Applicant did not establish through her evidence that Goodlife breached its duty to investigate her complaint of sexual harassment. The Tribunal found that it was unlikely that the Applicant made a complaint prior to her termination, and that, in fact, Goodlife only became aware of the Applicant’s complaint after she was no longer an employee. The Tribunal relied on Goodlife’s internal correspondence from the Applicant’s performance management meetings to make this finding.
As for the question of whether Goodlife had a duty to investigate the Applicant’s complaint, despite becoming aware of the issue after her termination, the Tribunal ultimately held that “an employer respondent has no legal duty to conduct a workplace investigation where the person requesting the investigation is no longer an employee.” This means that Section 5(1) of the Code can be interpreted to impose duties on employers to ensure a discrimination-free workplace environment for employees only while they are employed or otherwise working in that workplace environment. According to the Tribunal, “the requirement to launch a proper investigation does not arise absent a connection to the Code requirement to provide a discrimination free workplace.” In other words, an employer duty under the Code extend to existing employees. They do not have a duty to former employees to provide a discrimination free workplace, as they are no longer within the workplace. In turn, if a former employee makes a complaint of a Code violation after the employment relationship ends, there is no duty to investigate it.
Key Takeaways
This case stands for the principle that the duty to investigate arises only during the employment relationship; it does not extend beyond it. The Tribunal in this case relied on the employer’s notes of their meetings with the employee to find that a complaint had not been made during the employment relationship, and therefore their duty to investigate had not been triggered. As such, a key takeaway from this case is that employers should meticulously document their meetings with employees to corroborate what occurred during the meeting, in the event that is disputed in the future. Employers should also have clear policies and processes that encourage employees to raise workplace complaints as soon as they become aware of them.
If you have a question about an employer’s duty to investigate or any other employment law issue, please contact Turnpenney Milne LLP.
Written By: Robin Nyamekye