For various reasons, an employee who files a workplace harassment complaint may wish to prematurely end the resulting investigation. In their view, since they are the author of the complaint, they only need to withdraw it to terminate the investigation.
That raises two questions I will examine in this final article of a three-part series: Can an employee withdraw their harassment complaint? And if so, does it effectively end the investigation?
The employee can certainly inform the employer that they wish to withdraw their complaint, but that does not necessarily mean the investigation will be discontinued. As explained in part one, while the filing of a harassment complaint usually triggers an investigation process, it is technically not the complaint itself that triggers the employer’s duty to investigate, but rather the employer’s receipt of information related to a harassment incident (through a complaint. In other words, it is not technically the employee’s action, but the information received by the employer that leads to an investigation. In fact, the obligation to ensure the right to a harassment-free workplace or the duty to protect employees’ health and safety falls on the employer, who must investigate when made aware of a harassment incident.
For example, in Metrolinx v. Amalgamated Transit Union, Local 1587, the employee did not wish to file a complaint regarding an incident of sexual harassment. On this point, the Ontario Superior Court of Justice stated: “A victim’s reluctance to report or complain cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.”[1] The fact that a complaint is not required clearly shows that the employer has a duty to investigate harassment, regardless of the employee’s wishes, as explained in the second article in this series.
Since the duty to investigate any known harassment incident falls on the employer, whether they become aware through a formal written complaint or otherwise, the withdrawal of a complaint is not a determining factor in whether the investigation continues. The complainant may therefore inform the employer of their desire to withdraw the complaint, but this will not automatically bring the investigation to an end. Although the complainant’s withdrawal from the investigation may complicate matters, the employer must still determine what steps are required in the circumstances to fulfill its harassment-related obligations, regardless of the “withdrawal” of the complaint.
The principle outlined in this blog post is important, as employers sometimes believe they are required to investigate solely because the employee has filed a complaint. Similarly, they may mistakenly grant employees authority they simply do not have, such as allowing them to refuse the investigator chosen for them.[2] Under provincial and territorial regimes, the reality is that the obligation to investigate after learning of a harassment incident lies with the employer. Because this obligation rests with the employer, it is the employer, and not the employee, who makes decisions regarding the harassment incident.
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 paragraph 60.
[2] It is worth noting that the federal regime differs in this respect and allows employees to have a say in the selection of the investigator. See Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, ss. 27(1).