The Ontario Divisional Court, in April of 2024, considered the conflicting issues arising due to a workplace harassment issue. The two colliding values were the protections afforded to individuals’ right of privacy and the duty upon the employer to investigate allegations of workplace harassment. A further issue arose due to the unwillingness of the apparent victim to file a workplace complaint, as was required by the policy manual.

The case arose from a workplace grievance which had found in the grievors’ favour, which was subsequently set aside by the Divisional Court. Given that the test was one of reasonableness, the conclusion made on review that the initial decision was unreasonable adds fuel to the conclusion which was reached. The case will no doubt be applied in a non-unionized workplace context. ¹

In the course of the investigation of an unrelated matter, the investigator became aware of WhatsApp messages which had been exchanged between the grievors. These texts made derogatory and sexist comments about a female co-worker, in essence, stating that she had provided certain sexual favours to advance her career. The female employee had become aware of these messages and had reported them to her supervisor in 2019, but did not wish to file a formal complaint.

The employer, once it had become aware of these activities, began an investigation. In this process, the investigator became aware of other messages made by other employees in the summer of 2020. The investigation was completed in December of 2020 and the final report in March of 2021. This led to the termination of the five employees involved in the messaging.

The arbitrator reinstated with full compensation and no loss of seniority.

The arbitral decision considered that the employer was without the right to intrude upon the personal messaging without express “contractual, statutory or judicial authority”. Further, because the conversations were “inaccessible to the public generally”, this could not be considered sexual harassment. In addition, as the victimized employee did not wish to and did not file a complaint, the employer could not conduct a fair and impartial investigation as it was both “the complainant and the investigator”, nor could the employer substitute itself as the complainant.

The Divisional Court unanimously agreed that this decision was unreasonable. The case was remitted back to a new arbitrator.

The reasons for the decision were:

1. Even where the victim may not file a complaint, the employer remains under a duty to ensure a safe working environment, both under the Human Rights Code and the Occupational Health & Safety Act.
2. This is so even, as in this case, the policy manual speaks of an investigation as one which has been initiated by a complaint.
3. A person’s reluctance to file a complaint or report an event of sexual assault must not be viewed as a presumptive conclusion of acceptance of the wrongdoing. This applies to all cases of sexual harassment not purely sexual assault.
4. The arbitrator wrongly focused upon the privacy rights of the grievors.
5. There was no doubt that certain of these messages came to the attention of the victim. However, even considering the context the messages originated, the fact that they were present in the workplace, made their content a workplace issue.

This was a different analysis of the right to privacy as has been discussed previously in searches of an employee's computer footprints in the workplace in which the Supreme Court had invoked Charter values to offer implied protections to personal data recorded on the employer's IT system. There was no discussion of these principles. Once the messages entered the workplace arena, then seemingly no such protections followed.