An Ontario court has confirmed, underscored, highlighted — and just plain emphasized, yet again — that employers have a duty to investigate allegations of workplace harassment even if there is no formal complaint filed.
The ruling by the Ontario Superior Court of Justice came in the wake of a high-profile arbitration ruling that reinstated five GO Transit drivers who were fired after crude chats they were having on WhatsApp, after-hours and on personal devices, surfaced.
These communications included derogatory and sexist comments about a female employee. Originally, an arbitrator ruled these actions outside the employer’s scope, stating that since the conversations were off-duty and not formally complained about, they were not subject to employer scrutiny.
The Ontario Superior Court of Justice strongly disagreed with that stance.
“The arbitrator’s reasons, read as a whole, fail to recognize that while some victims of workplace harassment are reluctant to report harassment or participate in the resulting investigation, their employer remains obligated to investigate such behaviour and to protect the workplace from a hostile or demeaning work environment,” the court said.
In this case, the conduct of the fired drivers came to light during an unrelated investigation at Metrolinx. The HR department was told about the WhatsApp conversations and that they referred to a female co-worker performing sexual favours for career advancement.
The victim had received screenshots of the messages. She reported the allegations to her supervisor but did not file a formal complaint because she didn’t want the matter investigated. That fact does not relieve the employer of its duty, the court said.
Essential truths
This decision underscores a number of essential truths for HR professionals and employers: workplace harassment extends beyond the physical and temporal confines of the workplace itself.
It reiterates that the nature of harassment, especially in the digital age where lines between personal and professional lives blur, demands vigilance and responsiveness from employers, irrespective of the setting in which it occurs.
The five drivers involved in the chat should have, obviously, known their conduct was unwelcome. And as soon as it became known to the victim, it “created a demeaning and offensive work environment that no employee should be compelled to endure,” the court said.
Legal and moral obligations
The ruling clarifies that employers are legally bound to investigate whenever they become aware of potential harassment, not just when directly approached by a complainant. This stance is not only a legal obligation under statutes like the Occupational Health and Safety Act but also a moral imperative to maintain a respectful and safe work environment.
The reluctance of victims to come forward is a well-known and well-documented barrier in the fight against workplace harassment. The court’s emphasis on this issue serves as a reminder to all leaders that our roles are not merely reactive but fundamentally preventative. Employers must foster an environment where all employees feel supported and secure in reporting any inappropriate behaviour, knowing it will be taken seriously and investigated.
All employees entitled to harassment-free workplaces
Moreover, the decision reinforces the concept that all employees, not just the direct victims of demeaning comments, are entitled to a workplace free from harassment. This broad protective scope is crucial in cultivating an inclusive workplace where the rights and dignity of every employee are upheld.
The court decided against dismissing the grievances from the drivers outright because, even though the arbitrator’s ruling was fatally flawed, there are other valid issues to be determined — including whether termination was the appropriate penalty in this case.
In the end, this ruling is not just about one case or one set of policies at Metrolinx but about setting a precedent that ensures the safety and dignity of workers across all sectors.
It serves as a potent reminder of the evolving landscape of HR responsibilities, particularly in the realm of employee interactions in both private and public spheres.
This case should serve as a clarion call to all HR professionals: vigilance and proactive governance in harassment issues are not optional but essential to the integrity and health of every workplace.
Todd Humber is the founder of North Wall Media, a firm specializing in workplace journalism. He can be reached at [email protected] or visit www.NorthWallMedia.com for more information.
For more information on this ruling, see Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII).
