Addressing harassment without a complainant

Exclusive to Canadian HR Reporter from Rudner Law.

What happens when there is evidence, or even suspicion, of harassment but the victim doesn’t complain? Does the employer have an obligation to carry out an investigation?

If the employer finds harassment, in the absence of a complaining victim, can the employer discipline the responsible parties?

In Metrolinx v. Amalgamated Transit Union, Local 1587, the Ontario Superior Court of Justice - Divisional Court, confirmed the employer’s obligation under the Occupational Health and Safety Act (OHSA) to investigate all instances of harassment - regardless of the existence of a complainant.

Investigation of harassment by bus drivers

Five employees, all bus drivers, were in a group chat on their personal cellphones during off hours. In this group chat the employees repeatedly discussed one of their colleagues, a female employee (referred to in the decisions as “Ms. A”), alleging that A had obtained employment advantages in return for sexual favours.

An unidentified party forwarded screenshots of the messages to Ms. A, who reported it to her supervisor but did not want to make a formal complaint. Ms. A later stated she was upset when reviewing these messages but decided not to proceed with a complaint. The employer’s human resources department became aware of the incident and investigated.

As Ms. A did not participate in the investigation. The employer determined that the employees’ conduct was sexual harassment and dismissed all five, in accordance with its zero tolerance policy for sexual harassment. The employees’ union grieved.

Arbitrator finds no workplace harassment

The matter was heard by an arbitrator of the Grievance Settlement Board. The arbitrator noted that the employer’s workplace harassment policy did not govern employee conduct outside the workplace or after hours. As the offending text messages had been exchanged outside of work, the arbitrator found that the employer had failed to prove the offence of work-related sexual harassment.

The arbitrator also found that as Ms. A had not filed a complaint there was no proper complainant and that the employer could not substitute itself as a complainant - this, the arbitrator said, was enough to end the matter. The arbitrator ordered the employees reinstated without loss of seniority and with compensation to make them whole for the time off work. 

The employer applied for Judicial Review of the arbitrator’s decision.

Divisional Court cites OHSA requirements

The Divisional Court’s review of the arbitrator’s decision left little doubt as to the court’s opinion of the arbitrator’s reasoning. The court described the arbitrator’s conclusion that the matter should have ended when Ms. A refused to make a complaint of sexual harassment as wrong in law and “not an isolated misstep” but instead as an error that “permeates his reasoning throughout.”The court found the employees’ conduct was sexual harassment, and that when this conduct became known to Ms. A, it created a “demeaning and offensive work environment that no employee should be compelled to endure.”

The court noted that the harassment provisions in the OHSA required that an employer investigate incidents and complaints of workplace harassment. Further, the Ontario Labour Relations Board had confirmed that the use of “incidents” and “complaints” in the OHSA meant that an incident alone was enough to trigger the investigation requirement in the OHSA - irrespective of whether there was a complainant.

Finally, the court held that the arbitrator’s finding that Ms. A’s reluctance to pursue a complaint meant that there was no harassment was incorrect. The court noted that a victim’s refusal to make a complaint did not relieve an employer of its statutory duty to investigate if an incident of sexual harassment came to its attention.

The court also noted that the arbitrator’s description of the employer substituting itself for Ms. A as the complainant was incorrect. The OHSA obliged the employer to investigate the matter once it had come to its attention - even if not pursuant to a complaint. An employer’s duty to investigate was not only owed to the victim but to all employees in the workplace.

The Divisional Court found the arbitrator’s decision unreasonable, and ordered the matter back to the Grievance Settlement Board, before a different arbitrator.

Takeaways for HR: investigate all allegations of harassment

Application of the arbitrator’s original decision would mean that a victim of harassment would need to come forward for the matter to be investigated. This would blunt the effectiveness of the harassment provisions in the OHSA: a harasser who intimidated their victim could do so with impunity, in the knowledge that no action would be taken without a complaint.

Extending the arbitrator’s logic, if there is no basis to investigate an incident of harassment without a complainant, then there is no victim - and no need to impose discipline for the harassers. This runs contrary to the basic concept of the Canadian approach to the law and justice. A victim of a crime does not “press charges” - the Crown does. Similarly, the lack of a complaining victim of workplace harassment does not remove the need to investigate the incident and if necessary, discipline the harasser. The act is what matters - not the party to whom it happened.

A victim of any harassment may be hesitant to bring the matter forward out of fear of reprisal or the impact on their reputation at work. For this reason, the OHSA includes language which requires an employer to conduct an investigation if an instance of harassment comes to its attention.

This case stands as a reminder to employers of the importance of conducting an investigation into all allegations of harassment - irrespective of how the allegation came to its attention. This is the case even if the alleged perpetrator resigns once the allegation comes to light. Remember that a harassment investigation is not conducted with the sole purpose of punishing the perpetrator, but to also identify what happened and determine whether it could have been prevented.

The purpose of the anti-harassment provisions in the OHSA work on both micro and macro levels. The individual employee benefits from knowing that their harassment will be investigated and hopefully addressed. All employees at a workplace benefit from a harassment-free environment, or at least one where harassment will not be tolerated.

Geoffrey Lowe is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].