Even without a formal complaint, sexual harassment must be investigated: court

Ontario’s Divisional Court recently overturned an arbitrator’s decision concerning a sexual harassment investigation that saw five Metrolinx employees terminated for offensive WhatsApp messages.

The drivers were found to have engaged in lengthy and derogatory language about female co-workers, one of whom, a “Ms. A”, was sent screenshots of messages that said she exchanged sexual favours for career advancement.

Ms. A was disturbed by the messages, but although she reported the messages to her supervisor at the time, she declined to lodge a formal complaint or be involved in the investigation, “as she did not want the other drivers to know she complained. Ms. A also stated in July 2020 that she did not want to ‘take this further’,” the Divisional Court said.

Metrolinx conducted an internal investigation that resulted in termination with cause of the five drivers.

All incidents of workplace sexual harassment must be investigated

“When there is an incident or an alleged incident of workplace harassment that comes to the employer’s attention, it has to be investigated in a way that is appropriate in the circumstances,” says Mike MacLellan, partner at Crawford Chondon & Partners in Toronto.

“That may be that you don't have as fulsome a fact-finding portion of the investigation as you would with a willing complainant, that’s fine. The investigator can only do what they can do with the information people give them, and the information that people are willing to give them.”

The union representing the workers – the Amalgamated Transit Union – grieved the terminations, and the Grievance Settlement Board rescinded the terminations and reinstated the five drivers with back pay.

In his decision, the grievance arbitrator wrote that “Ms. A could not have been harassed, because she was not willing to file a complaint under the policy and fully participate in any investigation, and … Ms. A was not upset about the degrading messages that the grievors shared about her and that she was only upset at the prospect of an investigation being conducted”.

Metrolinx sought judicial review, claiming the arbitrator’s decision relied on “myths and stereotypes” about how victims of workplace sexual harassment should behave. The Divisional Court agreed, stating the arbitrator’s claim that the lack of formal complaint by the victim or any other employee “should have been the end of the matter” was simply not legally correct.

Section 32.0.7 of Ontario’s Occupational Health and Safety Act (OHSA) requires employers to investigate “incidents and complaints of workplace harassment”.

“Incidents” is the requisite word here, says MacLellan.

“Just because the complainant says they don't want to participate, or they're reluctant or they're withholding information, that doesn't mean the investigation stops. It just means the investigator has to do the best they can do under the circumstances.”

Trauma-informed approach to workplace investigations

British Columbia’s Occupational Health and Safety Regulation (OHSR) and the Workers Compensation Act (WSA) do not have the same duty to investigate stipulation as the OHSA, but employers have a baseline requirement to ensure a safe environment free from harassment or violence, says employment lawyer Fiona McFarlane of KSW Lawyers in Surrey, B.C.

If a victim of sexual harassment might not want to make a claim, it’s important to remember to take a trauma-informed approach, she says. Because the duty to investigate incidents is the law in Ontario, some employers may feel obligated to “push” investigations at the expense of the victim’s safety, privacy or comfort level.

“It seems they're taking that duty very seriously because it's enshrined in a regulation, and sometimes pushing complainants and investigating when a complaint has not actually been made or that complainant is reluctant to be involved,” says McFarlane.

“This is where that idea of a workplace audit or assessment comes in, because it's broader and it's not then focused on a complainant who might be reluctant to go forward for their own personal reasons.”

There are many reasons a target or victim of workplace sexual harassment might not want to be involved in an investigation, she says, including past trauma that is triggered, or concern about their reputation in the workplace being negatively impacted.

“As much as these are supposed to be confidential, nonetheless, potentially one or two people in HR and maybe the CEO, or somebody senior leadership-wise may need to know because they're a part of the employer-side folks tasked with taking the next steps,” she says. “That can definitely weigh on people and they might be very reluctant to participate.”

Off-duty conduct and sexual harassment

In his decision, the grievance arbitrator stated that the employer should not have intruded “on their private electronic conversations without express contractual, statutory or judicial authority to do so”.

The arbitrator also said in his decision that since the messages were in a private group and “not accessible to the public generally,” it could not have been harassment.

“Certainly, we don't want to overstep when investigating, we do want to be mindful of people's individual privacy,” says MacLellan. But it is within the rights of the investigating party to request access to personal devices if it is appropriate to the situation.

“It's going to depend on what the allegations are, and whether and to what extent the messages on someone's phone are relevant to the investigation. In this case, it clearly was, because those messages had already made their way to the workplace,” he says. “The complainant, the employer, the grievors, everybody knew those messages exist. It was just a matter of obtaining them to investigate the content of them and exactly what was going on.”

Whether or not an incident of sexual harassment is connected to the workplace can be a blurry line, McFarlane says, but if an off-site event is sanctioned or organized by the employer, it likely is. In scenarios where it is an informal event or a ride home afterwards, for example, it is best to take a “never assume” approach.  

“It's easier to investigate those things than to leave those things to fester because you think it's not workplace related,” says McFarlane.

“If you're in front of that, you can then go to WorkSafe BC when that complaint gets made, saying, ‘This is what we did to minimize that, and we're doing our best.’”