An employer's obligation to investigate – with or without a complaint

Understanding workplace harassment and employer responsibilities under Ontario's OHSA

BY Ronald S. Minken and Tanya (Tejpreet) Sambi 28 Nov. 2024

Workplace harassment continues to be a significant issue in many organizations, and Ontario employers need to understand their obligations under the province’s Occupational Health and Safety Act (OHSA). One of the most common questions workplace investigators encounter is whether incidents of harassment need to be investigated even when no formal complaint has been made. The answer, under Ontario law, is unequivocally yes.

Legal decisions, including E.S. Fox Limited v. A Director under the Occupational Health and Safety Act and, more recently, Metrolinx v. Amalgamated Transit Union, Local 1587, have reinforced the requirement for employers to investigate workplace harassment, even without a formal complaint. These rulings emphasize that employers must investigate all known incidents of harassment to fulfill their statutory obligations and protect the workplace.

The E.S. Fox case set a foundational precedent for employers’ obligations under the OHSA. The Ontario Labour Relations Board clarified that the OHSA mandates employers to investigate harassment incidents, even if no formal complaint is made. The reasoning behind this is that harassment itself - once it becomes known to the employer - is grounds for an investigation, irrespective of whether the individual affected has come forward with a complaint.

This case marked an important shift in the understanding of employer duties. It underscored that harassment, by its very nature, requires action from the employer, even when an affected employee may be reluctant to file a complaint for reasons such as fear of retaliation or embarrassment. The decision highlighted that the employer's responsibility extends beyond merely responding to formal complaints - it includes proactively investigating any incidents that come to their attention.

Expanding the scope of the duty to investigate

The recent Metrolinx case has further solidified this understanding. This case involved five employees of Metrolinx who were terminated following an investigation into a WhatsApp group chat where they made derogatory comments about several female employees. Although these messages were sent outside of working hours and away from the workplace, one of the female employees who was the subject of the messages received screenshots and reported the matter to her supervisor. Notably, she did not file a formal complaint and expressed that she did not want the matter investigated.

Despite her reluctance, Metrolinx initiated an investigation and subsequently terminated the employees involved for cause. The employees filed a grievance, and the arbitrator sided with the employees, finding that an investigation should not have been conducted in the absence of a formal complaint and without the complainant’s co-operation. The arbitrator also reasoned that, because the harassment occurred off-duty and outside the workplace, it did not fall within the employer’s scope of concern.

Metrolinx appealed the arbitrator’s decision and the Ontario Divisional Court overturned the arbitrator’s ruling. The court held that the arbitrator’s findings were unreasonable and failed to properly interpret the OHSA. The court made two key clarifications:

Employers must investigate all harassment incidents: The court reaffirmed that under the OHSA, an employer is obligated to investigate workplace harassment incidents, even if no formal complaint is made. The employer’s duty to investigate is triggered once they become aware of the harassment, regardless of whether the victim wants to pursue the matter. This obligation is critical in protecting the victim and the entire workforce from potential ongoing harassment.
Off-duty conduct can become a workplace issue: The court emphasized that harassment occurring outside of work hours or away from the physical workplace does not necessarily protect the harassers from employer scrutiny. If the behaviour, such as messages or comments, makes its way into the workplace, it becomes a workplace issue. In this case, the WhatsApp messages were shared within the workplace, thus bringing the conduct under Metrolinx’s responsibility.

The Metrolinx decision offers vital lessons for Ontario employers regarding workplace harassment and investigations:

Proactive investigation is essential: Employers cannot ignore known harassment incidents, even when no formal complaint is lodged. The duty to investigate is automatic once the employer becomes aware of the situation. This protects the broader work environment and upholds the principles of fairness and safety for all employees.
Off-duty behaviour matters: Employers should recognize that conduct outside of working hours or off-premises can still affect the workplace. If off-duty conduct has repercussions in the workplace, such as fostering a hostile environment, the employer is within their rights and obligations to investigate and take appropriate action.
Protection of all workers: One of the reasons why an employee may not file a complaint is fear of retaliation, embarrassment, or concern over their professional reputation. However, the OHSA’s provisions are designed to relieve some of this pressure on employees by making it clear that the responsibility to investigate rests with the employer. This reinforces the importance of creating a safe and supportive environment for all employees.

Steps to ensure compliance with OHSA

To ensure compliance with the OHSA and minimize legal risks, employers should:

Develop a clear workplace harassment policy: This should outline the company’s commitment to investigating all incidents of harassment, regardless of whether a formal complaint is made.
Provide training for managers and supervisors: Ensure that key personnel understand their obligations to report and investigate all known incidents of harassment.
Act promptly and fairly: When harassment is known, employers must conduct timely investigations, maintain confidentiality, and ensure fairness throughout the process.
Document everything: Keep detailed records of any reported incidents, the steps taken to investigate, and the outcome of the investigation.

Ontario law requires that employers take workplace harassment seriously, whether or not a complaint is made. The E.S. Fox and Metrolinx decisions reinforce that employers have a duty to investigate incidents of harassment to protect all workers and maintain a healthy work environment. By understanding and acting on these obligations, employers can safeguard their workforce and ensure compliance with the OHSA.

Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in the Greater Toronto Area. Tejpreet (Tanya) Sambi is a lawyer at Minken Employment Lawyers.