Duty to Investigate Post-Employment Harassment Complaint

**Written by Zura Nakiwoga, Articling Student at Lee Workplace Law

The Human Rights Tribunal of Ontario (HRTO) recently addressed important issues regarding workplace investigations and the concept of a poisoned work environment in its decision in Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312. The case involved allegations of sexual harassment and discrimination, raising critical questions about the obligations of employers to investigate harassment complaints post-termination and the circumstances under which a workplace can be considered poisoned.


Case Background

In Rougoor v. Goodlife Fitness Centres Inc., the applicant, Taylor Rougoor, alleged that she was subjected to sexual harassment by a co-worker during her employment at GoodLife Fitness. She claimed that her employer failed to address her complaints of harassment adequately, both during her employment and after her termination, claiming she had made complaints of harassment during her employment and reiterated them several months after her termination.

In defence, GoodLife Fitness argued that it was unaware of any harassment allegations until months after the termination, asserting that no complaints were made during Rougoor's employment.


Legal Framework

In this case, the two key issues were:

  1. Duty to Investigate Human Rights Violations: Under the Ontario Human Rights Code ("OHRC"), employers have a duty to investigate complaints of alleged human rights violations to ensure a workplace free from discrimination and harassment. This duty, however, typically does not extend to complaints made post-termination.
  2. Poisoned Work Environment: Employers have a duty to prevent a poisoned work environment. A poisoned work environment is characterized by pervasive discrimination or harassment that makes the workplace intolerable. For an environment to be deemed poisoned, the applicant must provide evidence: (i) that would lead a reasonable bystander to conclude that the workplace was poisoned; and (ii) show that the employer was aware or should have been aware of the harassment, allowing them the opportunity to take appropriate action.


Outcome

To start, the HRTO had to determine whether or not Rougoor had reported the alleged sexual harassment during her employment, or only after it concluded, as asserted by GoodLife. To do so, the HRTO considered the documentary evidence as well as assessed the credibility and reliability of the witnesses. It found the employer's witnesses to be more credible, supported by consistent documentary evidence. Thus, the HRTO concluded that Rougoor did not report the alleged sexual harassment until 6 months after her termination, aligning with GoodLife Fitness's position.

Findings on Duty to Investigate:

The HRTO found that GoodLife Fitness had no duty under the OHRC to investigate the sexual harassment complaint made post-employment. The Tribunal cited that employers are generally not obligated to investigate complaints if the person requesting the investigation is no longer an employee. This principle was crucial in the decision, as the complaint was made long after Rougoor's termination.

Findings on Poisoned Work Environment:

The HRTO concluded that a poisoned work environment had not been established in this case because:

  • The sexual harassment did not become a condition of Rougoor's employment.
  • GoodLife Fitness was not aware of, nor should they have been aware of, the alleged sexual harassment during Rougoor's employment.
  • Since there was no evidence to suggest that GoodLife Fitness had any knowledge of the sexual harassment, they could not have acquiesced to a poisoned work environment.

The HRTO emphasized that for a work environment to be considered poisoned, the employer must have or should have had knowledge of the harassment, enabling them to take appropriate action. Without such knowledge, the employer cannot be held liable for creating or allowing a poisoned work environment.


Post-Termination Investigations and OHSA Compliance

While the HRTO decision clarifies that there is no obligation under the OHRC to investigate harassment complaints filed post-termination, employers must be mindful of other legal obligations. According to the Ontario Labour Relations Board (OLRB) in E.S. Fox Limited v. A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (ON LRB), employers may still need to investigate such complaints to comply with the Occupational Health and Safety Act. This is particularly relevant if the alleged harasser remains employed by the organization. The OLRB emphasized that unresolved harassment complaints could present ongoing workplace hazards, necessitating investigations even after the complainant's employment has ended.


Key Takeaways

For Employers:

  1. Policies and Procedures: Implement and enforce comprehensive policies and procedures for addressing workplace harassment and discrimination. Ensure employees are aware of these policies and the process for reporting incidents.
  2. Documentation: Maintain detailed and clear documentation of workplace incidents, complaints and the steps taken to investigate. This documentation can be crucial in defending against allegations of non-compliance with the OHRC.
  3. Investigation Duty: While there is no duty under the OHRC to investigate post-employment complaints, employers should ensure thorough investigations of any allegations during employment to avoid potential liability. Additionally, employers should seek legal advice on investigating post-termination complaints to comply with the OHSA, especially if the alleged harasser is still employed.

For Employees:

  1. Timely Reporting: Report any incidents of harassment or discrimination promptly and document the complaints to ensure they are formally acknowledged by the employer. If the employer fails to respond, seek legal counsel to understand the mechanisms available to enforce your rights.
  2. Understanding Rights: Understand the rights and protections under the OHRC. Employees should be aware that employers may not be obligated to investigate complaints made after termination.

The decision in Rougoor v. Goodlife Fitness Centres Inc. highlights the importance of timely and well-documented complaints and responses to workplace harassment and discrimination, providing valuable guidance for both employers and employees in maintaining a respectful and legally compliant work environment.