Is social media content an extension of the workplace?
Does an employer have a duty to investigate if a victim is reluctant to report a complaint?
- Social media content can be considered an extension of the workplace.
- A victim’s reluctance to report, complain, or participate in an investigation does not relieve an employer of its statutory duty to investigate.
In this case a Superior Court Judge found that an Arbitrator’s decision to reinstate 4 terminated grievers was “Fatally Flawed” for several reasons:
Background
Metrolinx v. Amalgamated Transit Union, Local 1587
Parties: Metrolinx (Applicant), Amalgamated Transit Union, Local 1587 and The Grievance Settlement Board (Respondents)
During an investigation into an unrelated matter, an employee informed Metrolinx (the Employer)’s HR Department that an inappropriate conversation had been conducted by the Grievors via a communication app called “WhatsApp” on their personal cell phones.
These conversations contained derogatory comments about a female employee (Ms. A.) including that she performed sexual favours to advance her career.
(Ms. A.) was sent screenshots of these messages to her cell phone. She reported these allegations to her supervisor but did not file a formal complaint. The messages upset (Ms. A.) at the time she reviewed them.
The HR Department reported these allegations to the Employer, and the Employer commenced an investigation. During this investigation, the investigator was made aware of additional allegations of inappropriate comments made by other employees via a “WhatsApp” group chat.
(Ms. A.) advised that she did not want to file a formal complaint, as she did not want the other drivers to know she complained. During the investigation, (Ms. A.) advised that she no longer wanted to participate in the investigation, explaining that the investigation was causing her to feel stressed.
After reviewing the Investigation Report, the Employer terminated the employment of the Grievors for cause.
The Union filed grievances on behalf of each Grievor, which were then referred to the Grievance Settlement Board.
Decision of the Arbitrator, Grievance Settlement Board
The Arbitrator found that:
- The conduct was “off-duty” conduct outside of the authority of the Employer. The Grievors had a reasonable expectation that their messages would remain private.
- (Ms. A.) did not make a formal complaint and since The Employer could not be a complainant, the entire investigation was unsound.
- Because (Ms. A.) was reluctant to fully participate in the investigation, the investigation was conducted unfairly. Her refusal to participate also demonstrated that she didn’t believe she was a victim of sexual harassment or experienced a hostile or poisoned work environment.
- There was no evidence which established that the conduct had a negative effect in the workplace.
- The Arbitrator issued a Decision, finding that the Grievors had been terminated without just cause, and ordered that the Grievors be reinstated.
- The Employer applied for judicial review and sought an order nullifying the Decision made by the Arbitrator to reinstate the Grievors.
Decision
After reviewing the Arbitrator’s decision, the Superior Court Judge found that:
- Employers are obligated to investigate both “incidents and complaints of workplace harassment”. An incident of workplace harassment is grounds for an investigation to be carried out, regardless of whether a complaint was filed.
- The Employer’s duty to investigate is not just a duty owed to the complainant but is a duty owed to all employees in the workplace.
- A victim’s reluctance to report, complain, or participate in an investigation does not relieve an employer of its statutory duty to investigate. The Arbitrator’s conclusion was inconsistent with the employer’s obligations under the Occupational Health and Safety Act and inconsistent with the reality that victims may refuse to bring forward complaints for fear of reprisal or other consequences.
- Regardless of where it originated, the inappropriate conduct made its way into the workplace (and came to the attention of Ms. A.) and became a workplace issue.
The Superior Court remitted the matter back to a different arbitrator for reconsideration.
Key Takeaways:
- Employers are obligated to investigate any incidents and complaints of workplace harassment brought to their attention, even if a complaint has not been filed.
- A victim may refuse or be reluctant to file a complaint or participate in an investigation for many different reasons, and it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault or harassment in the workplace.
- Reluctance to report or complain about an incident cannot be used to judge a victim’s credibility and their reaction is not relevant to the Employer’s obligation to investigate.
- Regardless of intent, inappropriate behaviour outside of the workplace that negatively affects the workplace becomes a workplace issue.
HR Proactive Inc., has been providing harassment investigation services for over 25 years.
Sources:
Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII)
