Court recognizes that employers have a duty to investigate when cultures of silence stop complainants from coming forward

In Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, Ontario’s Divisional Court reversed an arbitrator’s decision. The Court found that an employer can and in some cases must investigate off-duty conduct by workers.

The employer’s investigation in the case concerned off-duty conduct in the form of a group WhatsApp chat, and resulted in five employees being terminated as a result of the comments they posted about their coworkers.

The Court agreed with the employer’s decision to investigate this conduct even in the absence of a complaint, recognizing that silence cannot insulate workplace harassment from being investigated and addressed. To the contrary, employers have a duty o protect employees from harassment even in the absence of a complaint.

Explicit Language Advisory

See Paragraph 23 of the Court’s decision for a sample of the comments at issue; I won’t repeat them here. Suffice it to say that a group of workers exchanged comments that would clearly be inappropriate in a workplace, but they did so over WhatsApp – perhaps believing they were having a strictly private conversation outside of the workplace.

But things change quickly when you post in online spaces.

Some workers took screenshots of the comments on the WhatsApp group, those screenshots were circulated, workers targeted by comments saw the screenshots and became upset, management was informed, and so an ostensibly private conversation became a workplace issue that resulted in investigation and firing of the employees who posted the comments.

The matter didn’t end there, as the fired employees filed grievances and an arbitrator found in their favour, reasoning that the employer was not permitted to launch an investigation in the absence of a complaint.

This led to the employer’s application to quash the arbitrator’s decision, which the Divisional Court has now granted in favour of the employer.

A Duty to Investigate

The Court found that the arbitrator’s decision got it wrong to the point of being unreasonable.

The heart of the unreasonableness was the arbitrator’s finding that so long as there was no employee complaint then there was nothing for the employer to investigate. In the Court’s view, this was absolutely wrong.  

The Court pointed out that employers in fact have the following duties when potential harassment comes to their attention:

• Incidents call for investigation: An employer’s becoming aware of an incident of workplace communication that is upsetting to an employee is sufficient to trigger an obligation to investigate the incident under Ontario’s Occupational Health and Safety Act.

• A complainant is not necessary for triggering an investigation: The obligation to investigate arises even if there has not been an employee complaint.

• The duty is owed to employees individually and collectively: The basis for the investigation is the employer’s duty to all employees in a workplace, to ensure a healthy and safe workplace that is free from harassment.

Silence is not a pass or pardon for workplace harassment

Importantly, the Court further noted the arbitrator’s mistaken view that the absence of a complaint could be taken to indicate that there was no issue of harassment. As stated by the Court:

A victim’s reluctance to report or complain about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, the prospect of further humiliation, or just the hope that, if ignored, the demeaning comments or behaviours will stop. This is true whether or not the conduct rises to the level of assault.

A victim’s reluctance to report or complain cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.

This finding emphasizes that silence must not be taken as a pardon or a pass for workplace harassment. To the contrary, a worker’s reluctance to come forward may be indicative of precisely the sort of culture of silence or other issues that merit an employer’s attention and investigation to ensure a healthy, safe and sustainable workplace culture.

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