HRTO finds no post-employment obligation to conduct a workplace investigation

The Human Rights Tribunal of  Ontario (the Tribunal) recently dismissed the application brought by an employee in Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312 where she claimed discrimination by her former employer with respect to employment on grounds of sex and in particular sexual harassment in violation of the Ontario Human Rights Code (the Code). The Tribunal concluded that the employee failed to prove on a balance of probabilities that her former employe had violated the Code by failing to investigate her harassment complaints or by creating a poisoned work environment.  

Factual background

The employee commenced employment with the employer, GoodLife Fitness on November 13, 2017, as a personal trainer. She was placed on paid administrative leave on December 20, 2017, and subsequently terminated on January 2, 2018. The employee alleged that she made complaints of harassment both before and after her employment was terminated. The employer alleged that a complaint of harassment was not made until several months after the termination of the employee’s employment.

Specifically in issue was whether the employer breached its duty under the Code to investigate the employee’s harassment complaint.

Legal framework

• The onus of proving, on a balance of probabilities, that a violation of the Code has occurred is on the employee.
• Clear, convincing, and cogent evidence is required to satisfy the balance of the probabilities test.
• Tribunal jurisprudence has established that an employer has no legal duty to conduct a workplace investigation if the person requesting the investigation is no longer an employee.

Evidence and factual findings

The Tribunal assessed the credibility and reliability of the witnesses, considering factors such as consistency, capacity to understand and recollect, and the existence of corroborative evidence. The Tribunal found the employer’s witnesses credible and their accounts consistent with the documentary evidence.

The employee’s allegations of making timely complaints to the employer were not corroborated by witnesses or documentation and was also expressly denied by the employer’s witnesses. There were also inconsistencies in her recounting of the facts relating to her complaints made during and after her employment.

In reaching its decision, the Tribunal noted that it was based largely on the credibility and reliability of the witnesses of both parties. On a review of the totality of the evidence, the Tribunal accepted the evidence of the employer’s witnesses where it differed from that of the employee.

The Tribunal concluded that when the employee voiced her complaint of sexual harassment, she was no longer employed by the employer and had not been employed with them for more than  six months. By such time, the employer did not have a legal duty to investigate allegations of discrimination. Therefore, the employer did not breach its duty under the Code to investigate her complaints.

Decision

The Tribunal ultimately found that the employee did not establish, on a balance of probabilities, that the employer failed in its duty to investigate her complaints of harassment. The Tribunal’s decision was based on its evidence-based finding that the employee only reported the harassment several months after her employment had ended.

Observations regarding a poisoned work environment

Although the employee did not allege a poisoned work environment, the Tribunal addressed the issue for completeness. A poisoned work environment is characterized by endemic discrimination or harassment in the workplace such that enduring such conditions becomes a term or condition of employment. The Tribunal found that the employee’s workplace was not poisoned, as the employer was not informed of the harassment, had no knowledge of the harassment, and could not be expected to have knowledge of the harassment. If the employer never had such knowledge, they would never have had the opportunity to conduct any appropriate investigation or to take reasonable steps to address the poisoned work environment. Additionally, the employer also had policies in place to promote a harassment-free workplace which set out the procedure for reporting and investigating workplace discrimination and harassment. Thus, on a totality of evidence, the Tribunal concluded that any allegations of harassment by employee, even if true, did not meet the standard of a poisoned work environment.

With respect to the legal significance of a finding of a poisoned workplace, the Tribunal confirmed that under s. 46.3(1) of the Code, the employer is not liable for harassing or discriminatory conduct of its individual employees; however, if the harassment or discrimination is sufficient to make a finding of a poisoned workplace, then the employer, in effect, has condoned or sanctioned the prohibited conduct and then becomes directly liable for the breach of the Code. As such, the legal concept of a poisoned workplace is not mere “colour” or a descriptive or interchangeable term for harassment or discrimination but presents different strategic considerations in responding to a workplace complaint or an application made to the Tribunal.

Conclusion and takeaways

The Tribunal’s decision signals the importance for employers’ to properly and comprehensively document workplace incidents. Proper documentation provides a factual basis for the employer’s account of the incident and can be instrumental in defending against allegations of failure to comply with applicable legislation. In this case, the documentation was on the employer’s side and supported its version of events.

The decision also underscores the confines of an employer’s duty to investigate a workplace harassment complaint post-employment. However, employers are reminded that while there are certain limits to the duty to investigate under the Code, the failure to investigate a breach of the code can have consequences including the finding of a poisoned work environment, which, in turn, goes to the heart of whether the employer is liable. As such, erring on the side of caution when it comes to allegations of discrimination and harassment in the workplace, and ensuring that the duty to investigate has been sufficiently and appropriately carried out, is key to staying fit from an HR compliance standpoint.