'The employer's duty is not just to investigate complaints, it's to investigate incidents'
“Employers have to remember that if something comes to your attention, you have to investigate it and you have to take complaints seriously - and this doesn't just apply to incidents of sexual harassment, it also applies if you become aware of a poisoned work environment.”
So says Jon Pinkus, a partner with the Labour and Employment practice group at Samfiru Tumarkin in Toronto, after the Ontario Superior Court of Justice quashed an arbitrator’s ruling that reinstated five Metrolinx workers who were fired for vulgar and sexually charged comments about co-workers in private text messages.
“If you don't do something about that, then you risk violating occupational health and safety legislation, you risk claims of constructive dismissal, and you risk seriously impacting morale at work,” he says.
Harassment policy
Metrolinx is a regional transportation authority in the Greater Toronto and Hamilton Areas. It had a Workplace Harassment and Discrimination Prevention Policy that defined sexual harassment as a course of vexatious comment or conduct against a worker in a workplace by someone with power and who should reasonably know that it’s unwelcome. The policy stated that violations would result “in substantive sanctions up to and including termination.”
The policy also outlined a reporting and investigation process that required all employees to co-operate fully in any investigations under the policy. The process was initiated “by a complaint in writing filed by the complainant with his or her immediate manager.”
In April 2020, an HR business partner at Metrolinx interviewed an assistant manager of bus operations. The assistant manager mentioned that a bus driver, “Ms. A,” had received screenshots of messages on the WhatsApp social media application with negative, sexual comments about her. The messages had apparently been written by another bus driver, JJ. Ms. A didn’t want it investigated so she didn’t file a formal complaint.
Workplace investigation
The HR business partner reported the messages to Metrolinx’s Workplace Harassment and Discrimination Prevention Department. An investigation revealed other inappropriate comments about employees in a WhatsApp group chat with seven Metrolinx employees. All of them were bus drivers with seven to 10 years of service and no discipline.
The investigator interviewed five employees who had made sexual comments about co-workers in the group chat, Ms. A, and the assistant manager.
Ms. A said that she was upset when she received the screenshots, but she didn’t file a formal complaint because she didn’t want other drivers to know about it. She said the investigation was stressing her and she refused to say who sent her the screenshot.
On April 27, 2021, the investigation concluded that the five workers had engaged in sexual harassment contrary to Metrolinx’s policy. In addition, JJ failed to provide additional WhatsApp messages when requested, which Metrolinx said was a failure to co-operate with the investigation.
Metrolinx terminated the employment of all five workers. The union grieved their terminations, arguing that the comments were made outside of work on the workers’ own time and none of the subjects of the comments knew about them other than Ms. A, who didn’t want to file a complaint.
Employee privacy
An arbitrator from the Ontario Grievance Settlement Board found that the policy covered harassment and discrimination “which occurs outside the workplace but which is having a negative impact within the workplace.” However, WhatsApp is an encrypted form of communication that is private to an approved chat group and the workers believed that their communications were private, the arbitrator said.
The arbitrator also found that the policy didn’t apply because, without a formal complaint, Metrolinx couldn’t act as both the complainant and the investigator. This led to an unfair investigation, the arbitrator said.
Given the lack of knowledge of the comments by anyone outside of the private chat group – other than Ms. A – the arbitrator determined that Metrolinx didn’t prove that there was any manifestation within the workplace. As a result, there was no sexual harassment warranting discipline, said the arbitrator.
Metrolinx was ordered to reinstate the five employees with no loss of seniority or compensation. Metrolinx sought judicial review of the decision.
The court found that the arbitrator failed to recognize that employers have an obligation to investigate workplace harassment even if victims don’t file a complaint. The Ontario Human Rights Code protects employees from harassment in the workplace and the Ontario Occupational Health and Safety Act (OHSA) sets out employer obligations to investigate “incidents and complaints of workplace harassment.” The latter means that the OHSA contemplates an investigation of an incident even if it’s not the subject of a complaint, said the court.
Duty to investigate
The court also noted that the Supreme Court of Canada has warned judges not to draw an adverse inference about the credibility of victims of sexual assault just because they are reluctant to complain about it. A victim’s reluctance to complain doesn’t relieve an employer of its “statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention,” the court said.
“The court was really emphasizing something that it has repeatedly done in a number of different cases, which is to try and dispel stereotypes about sexual harassment and how the victim is expected to respond,” says Pinkus. “I think the court was really interested in making this broader point about sexual harassment, especially because the comments in question were quite vulgar and they were of such a serious degree that it wouldn’t be reasonable to say the employer didn't have to investigate this in the first place because the victim didn't ask for that to happen.”
In this case, Ms. A didn’t want to make a complaint, but Metrolinx was aware of the potential harassment and had an obligation to investigate, said the court, adding that Ms. A was upset and emotional at work when she first saw the text messages.
The court also found that the arbitrator was “too focused” on the five workers’ right to privacy. Regardless of that right, Ms. A became aware of some of their comments and those who participated in the chat were free to forward the messages to others – which clearly someone did, the court said in finding that the worker’s comments made their way into the workplace and “became a workplace issue.”
“The arbitrator said that these were private discussions that weren’t intended to reach the workplace, and the court said that some of their comments came to [Ms. A’s] attention in the workplace,” says Pinkus. “When you're talking about social media, there isn't a bright line - if you're making a comment about a co-worker and it's a comment like this, it's not reasonable to expect that that's going to be totally insulated from the standards of behavior required in your job.”
Appropriate discipline
Although the court determined that the arbitrator’s reasons for reinstating the workers weren’t reasonable, it declined to simply dismiss the grievances and uphold their dismissals. Recognizing that “not every case of sexual harassment or assault demands a discharge,” the court remitted the matter back to a different arbitrator to determine appropriate discipline.
Employers don’t always have to investigate without a complaint, but if they learn of potentially serious misconduct, their obligations kick in, says Pinkus.
“If you can imagine a scenario, for instance, where an employee makes a comment to a colleague that they feel their boss is unfair and belittling them in their performance evaluation, absent a complaint in a situation like that an employer doesn't have to jump into an investigation,” he says. “But where you have evidence of really serious harassment and comments to the degree of vulgarity that we see here, that’s going to trigger the employer’s obligation to investigate.
“The court’s point here is how the employer’s duty is not just to investigate complaints, it's to investigate incidents, and if you have a serious incident, you have to investigate it - it's an explicit statutory duty, it’s right in the legislation.”
