Howard Levitt: Employers must investigate harassment, even if it occurs in private and after hours

Employers have a legal duty to eliminate harassment and discipline employees for their conduct, whether it occurs during or outside of work hours. Photo by Getty Images/iStockphoto

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If a company finds out that a few of its employees made disparaging comments about a coworker on a private group chat outside of working hours, what obligations does it have? What if the maligned employee refuses to lodge a complaint and wants the incident quickly buried? Can the company look the other way?

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And what privacy rights do employees have to these ostensibly private communications? Can an employer require them to hand over the evidence?

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These issues arose in a recent decision of the Ontario Court of Appeal involving Metrolinx. Five employees had a private WhatsApp chat group in which they sent texts while on their personal cellphones. In the chat, they claimed that a female coworker had slept her way into advancement. The chat was inaccessible to anyone outside of the group.

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Although the exchange was intended to be confidential, the employee learned of it — as did Metrolinx, which asked the employee if she wished to complain. She did not. She wanted the matter forgotten as quickly as possible.

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Metrolinx investigated anyway and demanded copies of the texts from one of the five chat group authors, with the threat of discipline if he did not hand them over. It then fired all five workers for cause. Their union grieved.

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The court noted that employees can be disciplined for off-duty conduct if it seriously prejudices or injures a company’s reputation or legitimate business interests, with the level of discipline proportionate to the harm.

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To impose discipline, an employer must show that the communication was publicly disseminated or available to others and had a real — not just hypothetical or presumed — negative impact on the workplace or on the target of the inappropriate language

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Notwithstanding an employee’s refusal to file a complaint, employers have a legal duty under the Occupational Health and Safety Act to investigate any harassment, whether or not there is a complaint and whether or not the harassed employee wants the matter investigated. As the court noted:

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“There are many reasons why a victim of harassment might choose not to pursue an official complaint, none of which erase the harassing behaviour or the employer’s obligation to investigate it to protect the workplace from a hostile or demeaning environment. Focusing on a reluctance to complain relies on rejected myths and stereotypes about how (the subject of harassment) would respond. The reluctance of a victim of sexual harassment may be caused by many factors, but that reluctance does not relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.”

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The point is that employers have a duty to investigate and eliminate harassment in the workplace if it ever learns of such behaviour.

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The court went on to conclude that “An employer’s duty to investigate is not just a duty owed to the victim but to all employees, who have a right to work in an environment free from demeaning and offensive comments.”