Recent tribunal decision underscores employer obligations around harassment investigations
A recent case before the Human Rights Tribunal of Ontario (HRTO) should be helpful for employers and HR in confirming their responsibilities when it comes to investigating workplace harassment allegations.
In Rougoor v. GoodLife Fitness Centres Inc., the HRTO ruled in favour of GoodLife, finding that the company was not obligated to investigate a harassment complaint brought by a former employee months after her termination.
The decision also highlights the importance of timely reporting and thorough documentation, say two legal experts.
Background of harassment case
Taylor Rougoor, a former personal trainer at GoodLife Fitness, alleged that she was sexually harassed by a co-worker shortly after starting her employment in November 2017. She claimed to have raised concerns with management before her termination in January 2018.
GoodLife, however, denied receiving any harassment complaints during her employment, contending that Rougoor first raised the issue six months after her dismissal, in July 2018.
The central issue in the case was whether GoodLife had breached its duty under the Ontario Human Rights Code by failing to investigate Rougoor’s allegations. According to the code, employers must ensure a harassment-free workplace and investigate complaints of discrimination when brought to their attention.
No obligation to investigate after termination
However, the tribunal reaffirmed that this duty to investigate does not extend to complaints made after an employee's termination.
The HRTO found that GoodLife had no knowledge of the harassment during Rougoor’s employment. As a result, the company was not obligated to investigate her post-termination complaint.
“The applicant has failed to establish on a balance of probabilities that she reported to the respondent her allegations of harassment during her employment and as such the respondent did not breach its duty under the code to investigate her complaints.”
One of the key takeaways from this case is the tribunal’s confirmation that an employer’s duty to investigate only applies during an active employment relationship, says Robin Nyamekye, a lawyer at Turnpenney Milne in Toronto.
“The way that section five of the Ontario Human Rights Code operates is that basically everyone has the right to equal treatment with respect to employment… and here, the applicant brought the complaint when she was no longer an employee.”
Best practice? Check out allegations anyway
But even if there isn't a duty to investigate a workplace complaint after an employee has left, it’s not necessarily a good idea “to just brush it under the rug,” says Lori Anne Khaouli, senior associate at Grosman Gale Fletcher Hopkins in Toronto.
Employers should still review their documentation to confirm whether any complaints were made during employment.
“Just to be safe, if the employer wants to take the next step… maybe they could discuss with some current employees, see if they have any knowledge of something that took place, just to cover all their tracks,” she says.
“Don't just let it sit, because if there is an indication that a report was made on any level, then there might be that obligation to conduct that workplace investigation.”
And if the employer is having concerns about any kind of harassment taking place, she says, they should double check if all their workplace policies are in place.
Harassment complaints: formal versus informal
A common question among employers is whether a formal complaint is required to trigger the duty to investigate. Both lawyers agree that the duty arises as soon as an employer becomes aware of a potential harassment issue, regardless of how the complaint is made.
The forum where the information is brought up “doesn’t make a difference,” says Khaouli.
Whether the complaint is made during a performance review or through a formal reporting mechanism, the employer must act once they have knowledge of the harassment, she says.
"It could be informal. The most important thing is that the duty is triggered once a complaint is made. It does not have to be a formal complaint — it doesn't need to be written; it could be a verbal complaint… the threshold isn't very high.”
The Rougoor decision reinforces the importance of clear workplace policies — such as how to report harassment — that are up-to-date and well-communicated to employees, says Nyamekye.
"[It’s about] clearly outlining what the mechanisms are for employees to raise complaints of code breaches or harassment, at all points of the employment relationship," she says, which also helps protect the employer against future claims.
"It's really encouraging employees to come out and speak out about any complaints that they have.”
In this case, the tribunal found that GoodLife didn't have any knowledge while the applicant was an employee, says Nyamekye.
“It’s [about] circumstances where either a formal complaint is lodged, or even if a formal complaint isn't lodged, the employer knew or ought to have known that harassment was present.”
Probationary employees and harassment claims
One issue that arose in the Rougoor case was whether the employee’s probationary status affected GoodLife’s obligation to investigate her harassment complaint. Both Nyamekye and Lori Anne confirm that probationary employees have the same rights as other employees under the code.
"Regardless of whether or not they're under probation, they're still considered an employee,” says Nyamekye.
“What was key here, in this case, was whether or not GoodLife had knowledge of the complaint. There wasn't a factual dispute as to whether or not there was a complaint — it was the timing of the complaint and whether or not it arose while this person was an employee.”
Realistically, the individual just had to prove that a complaint was made during her employment, says Khaouli.
“She's still an employee during the probationary period; she still has rights as an employee during the probationary period.”
Importance of documentation for workplace investigations
The tribunal’s decision also highlights the critical role of documentation in defending against harassment claims. GoodLife was able to rely on extensive internal records, including performance management documents and emails, to demonstrate that no complaints were made during Rougoor’s employment.
"GoodLife relied on internal correspondence in terms of setting up the meetings, and also what took place in the meetings themselves,” says Nyamekye.
The company’s witnesses, including supervisors and HR personnel, provided corroborating testimony that no harassment allegations were raised, she says.
"GoodLife had contemporaneous evidence; they had the memos, they had emails, and there was no mention of any complaint…. It's a very good practice to paper the record all throughout the employment relationship, not only in the context of someone being terminated.”
Khaouli echoes this sentiment, stressing that proper documentation is crucial in defending against workplace incidents such as harassment allegations – where there’s often a lot of “he said/she said.”
"Good, proper documentation here is a huge takeaway because it'll actually provide that factual basis from the employer's perspective of [whether] an incident was reported and that's pretty instrumental if they need to defend an allegation for failure to comply with the legislation.”
