You Can’t Un-Ring the Bell: Employers duty to investigate workplace harassment in the absence of a complaint
An employee has told you that their coworker is being harassed. However, when you follow up with the employee who was allegedly harassed, they tell you that they do not want to file a complaint or participate in an investigation. As an employer, what are your obligations in these situations? Should you listen to the employee’s wishes or initiate an investigation in the absence of their participation?
Luckily, the Ontario Divisional Court shed some additional light on how employers should approach these situations in Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900. The Court confirmed that employers have a duty to investigate incidents of potential workplace harassment, regardless of whether the alleged victim chooses to file a complaint or participate in an investigation.
The Facts
While conducting an unrelated investigation, Metrolinx learnt that five of its employees had made comments in a group chat about another employee, Ms. A, performing sexual favours for career advancement. Ms. A reported these allegations to her supervisor at the time but did not file a complaint because she did not want an investigation into the incident.
After learning of the incident, Metrolinx Human Resources investigated the matter. However, Ms. A refused to participate in the investigation of the incidents.
Metrolinx continued with the investigation without Ms. A’s participation. The investigator concluded that that the five responding employees had violated Metrolinx policy. Metrolinx terminated the employees for cause.
The Arbitration Decision
All five of the employees were reinstated at Arbitration. The Arbitrator concluded that Metrolinx had erred in pursuing the investigation without a complainant, as the employer could not have conducted a fair and impartial investigation without a complaint or the participation of Ms. A.
Divisional Court Decision
The Divisional Court overturned the Arbitrator’s decision on judicial review. Writing for the Court, Justice Charney found at para 46 that the Arbitrator’s reasons:
“fail 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.”
Importantly, Charney notes at para 53 that s. 32.0.7(1)(a) of the Occupational Health and Safety Act (“OHSA”) imposes a duty on the employer to investigate both complaints and incidents of workplace harassment. Thus, there is no conflict in the employer investigating an “incident” of workplace harassment in the absence of a “complaint.”
Furthermore, the duty to investigate is not only owed to the complainant, as “All employees – not just the direct victim of the comments – have a right to work in an environment that is free from demeaning and offensive comments” (para 53).
Conclusion
This decision provides additional clarity for employers attempting to determine whether they should initiate an investigation. If you are ever uncertain about whether you have a duty to investigate in a particular situation, don’t hesitate to reach out to our experienced workplace lawyers and investigator’s at Turnpenney Milne LLP.
Written by: Emily Sheppard