We saw in part one of this three-part series that all employers in Canada, regardless of the jurisdiction in which they operate, are likely under a duty to investigate when they become aware of a harassment incident, even in the absence of a written complaint. The key question then becomes, what should an employer do in such circumstances? Let’s explore that question in this article.
Harassment Incident
An employer may become aware of a harassment incident in various ways, and workplace rumours are one of them. However, employers cannot investigate every rumour circulating among employees; doing so would require too much time and energy, often for situations that may prove to be unfounded. The first step, therefore, is to determine whether the alleged conduct falls under the employer’s respectful workplace policy.
Indeed, an employer’s statutory duty to act or investigate applies to situations that constitute harassment. Accordingly, if the situation does not fall within the scope of the respectful workplace policy, the employer has no statutory duty to investigate. The employer may still need to intervene, but not under its legal obligation to investigate harassment incidents.
If the information received appears to fall within the scope of the respectful workplace policy, the employer should meet with the person who may have experienced harassment to gather more details and clarification. Following that meeting, the employer may determine that the situation, contrary to the rumour, does not fall within the policy. If so, the employer documents the matter and ends the process.
On the other hand, the employee may reveal details that confirm the need for a harassment investigation. At that point, the employer must ask the employee whether they wish to file a written complaint. If the employee agrees, they prepare a complaint and submit it to the employer, who proceeds with the usual investigation process. In this case, as we will see in the third blog post of this series, the complaint does not trigger the duty to investigate because that obligation was already triggered when the employer became aware of the harassment incident. Nonetheless, the written complaint may assist with the investigation process by providing more detailed information than would typically be conveyed verbally. If the employee chooses not to file a complaint, the situation becomes more complex; however, the employer’s obligation remains.
Lack of Employee Cooperation
If the employee does not wish to file a complaint, the investigation must still proceed. Again, it is the employer’s knowledge of the harassment incident, not the written complaint, that triggers the duty to investigate. The employer, therefore, initiates the investigation on their own initiative, and at this stage, the question then becomes whether the employee will cooperate with the investigation.
If the employee agrees to cooperate, the employer begins the investigation, and the employee assumes the role of complainant in the process, even though they are not officially identified as such on paper.
If the employee refuses to cooperate, the employer must assess whether the investigation can proceed without their participation. There may be physical evidence or witnesses that would allow the employer to establish the facts on a balance of probabilities.
In Metrolinx v. Amalgamated Transit Union, Local 1587, the employer was able to investigate despite the employee’s refusal to cooperate, based on screenshots that had been provided.[1] Since the employer had material evidence, it was able to determine the facts on a balance of probabilities without the employee’s involvement, especially as the employee had no information beyond what was already shown in the screenshots.
If the employee is the only person with relevant information and refuses to cooperate, the employer may be forced to discontinue the process. However, all steps taken up to that point must be documented to demonstrate the employer’s intent to fulfill its statutory duty.
Although employees are generally required to cooperate in investigations under respectful workplace policies, they cannot be compelled to disclose information against their will. Employers should not threaten disciplinary measures for refusing to cooperate. After all, the employee has not committed misconduct and has likely been subjected to harassment. Penalizing them in such circumstances would be inappropriate. That said, in exceptional circumstances, where the employer’s business interests or a third party’s interests are at play, an employee could be asked to participate in the workplace investigation or risk receiving a disciplinary measure.[2]
Complaint filed by Another Employee
Although a written complaint is not required to trigger an employer’s duty to investigate, a complaint will usually lead to an investigation. This raises the question: Can an employee who was not involved in the incident file a complaint on behalf of someone else? If so, the complaint would serve to inform the employer of the incident.
Unless legislation explicitly allows third-party complaints, we are of the view that a complaint submitted by someone other than the person affected should not automatically trigger an investigation. Upon receiving such a complaint, the employer should determine whether the information it contains falls under the Respectful Workplace policy and, if appropriate, speak with the person believed to have been subjected to harassment. From there, the steps would follow the process described above.
Automatically launching an investigation based on a third-party complaint would give employees significant power to activate an employer’s respectful workplace policy at will, potentially using it as a weapon to target colleagues whose behaviour they disapprove of.
Conclusion
In harassment matters, while the absence of a written complaint may complicate the employer’s response, it does not eliminate the legal duty to investigate when the employer is aware of an incident. Employers must carefully assess each situation and strike a balance between meeting their legal obligations, managing their resources, and respecting the respondent’s rights.
Translated from the original French version.
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Please note the information provided in this blog post is for general informational purposes only and every situation should be evaluated on a case-by-case basis.
[1] 2024 ONSC 1900 (CanLII) at paragraphs 14 and 21.
[2] See, for example, City of Vancouver Fire and Rescue Services v Vancouver Firefighters’ Union, Local 18, 2022 CanLII 91094 (BC LA) at paragraph 59, quoting Tober Enterprises Ltd. and United Food and Commercial Workers International Union, Local 1518 (1990), 7 C.L.R.B.R. (2d) 148 (BCIRC): “On the other hand, where an employee deliberately attempts to deceive his employer by a false or misleading explanation, the employee’s conduct is clearly blameworthy and threatens the basis of the employment relationship. The employee’s behaviour is equally blameworthy where he knowingly allows his silence to damage the legitimate business interest of the employer. Absent these kind of circumstances, however, an employee’s decision to remain silent when accused of wrongful conduct by his employer does not form a proper basis for the imposition of discipline.”