In Ontario, all employers have duties to investigate employees' complaints of harassment and discrimination. However, precisely when these duties are triggered and when they officially conclude have often been sources of confusion for human resources departments. Two decisions from the past year have shed significant light on these areas, while highlighting the importance for employers to fully understand the extent of their investigative responsibilities.
Background
In Ontario, employers have duties under the Occupational Health and Safety Act (OHSA) to investigate any complaint and incident of workplace harassment, where “appropriate,” and under the Human Rights Code (the Code) to “reasonably” investigate any such complaint or incident relating to any human rights ground the Code covers.
Under the OHSA, employers must create and keep up to date a workplace harassment policy that includes directions to employees on how to report incidents of workplace harassment and violence and prescribes how investigations into these incidents must be conducted. The OHSA also mandates that employers ensure these investigations are carried out in a timely manner, and that they are objective and unbiased. Under the Code, if employees raise complaints regarding workplace discrimination or harassment based on a protected ground—such as race, gender or disability—employers have a duty to protect employees against such conduct, and, as such, it must be addressed and investigated.
Importantly, if an occupational health and safety inspector determines that an employer is not equipped to conduct an investigation into allegations of harassment and/or discrimination, they can order that the employer hire an independent third-party investigator at the employer's expense.
Any failure to investigate at all or investigate adequately can result in breaches under the OHSA and/or the Code, depending on the circumstances. It can also result in potential liability for the employer.
Triggering a workplace investigation without an official complaint
In Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, the Divisional Court confirmed that employers have an obligation to address workplace harassment even in circumstances where they are aware of a complaint but the complainant who brought it declines to file it formally or engage with the employer's formal process for addressing such complaints. In Metrolinx, the employer discovered, while investigating an entirely separate matter, that some of its employees had made “negative, derogatory, and sexist” comments about another female employee in an online group chat.
The subject employee had received screenshots of these comments and reported them to her supervisor. Although she neglected to file a formal complaint, the employer launched an investigation nonetheless, without her participation. The Divisional Court found that this employer's launching of an investigation even in the absence of a formal complaint was compliant with its statutory obligations and that it had been the reasonable action to take.
In its decision, the Divisional Court stressed that the law imposes upon employers a duty to investigate because doing so protects all employees, not only those who file complaints or who have been subjected to harassment and/or discrimination. If those who perpetrate harassment and discrimination in a workplace are allowed to continue to do so without consequences, it will inevitably affect many, if not all, employees at that workplace.
Failing to communicate the results of an investigation
Even if employers have commenced and/or completed an investigation into harassment allegations, their duties to the complainant do not end there. In Bidwai v. Ontario Teachers' Pension Plan Board, 2024 HRTO 1092, the Human Rights Tribunal of Ontario found that, despite the employer's completion of an investigation into an employee's discrimination complaint, its failure to communicate to the employee the results of its investigation, or the steps it had chosen to take in response to those results, breached its obligations under the Code.
As these decisions illustrate, it is crucial for employers to not only conduct investigations promptly and with the utmost diligence, but also to grasp the complete scope of their legal responsibilities. To this end, up-to-date workplace harassment and discrimination policies are imperative, as is robust training on these policies, so that both those who may participate in these investigations and those tasked with conducting them are fully aware of their obligations. By taking these steps, employers can foster a safer work environment and mitigate potential legal risks.
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