Tribunal awards employee $2,000 in damages for sexually explicit text message

In the decision Young v O-I Canada Corp 2020 HRTO 879, an employee brought an application to the Ontario Human Rights Tribunal alleging discrimination with respect to sex, including sexual harassment. The employee, David Young, was a Millwright Maintenance Mechanic, who had a relationship at the plant with another employee (“L.C.”). The relationship ended, and L.C.’s ex-boyfriend (“M.E.”) and Mr. Young had tensions at work as a result. M.E. was also an employee of the employer.

While there is a host of other allegations in this case in respect of discriminatory conduct, the only conduct that infringed the Code was in respect of a sexually explicit text message. Mr. Young alleged that the sexually explicit text message was sent by M.E. He alleged that this was the case because he recalled seeing M.E.’s number showing up on L.C.’s phone and recognized the last four digits.

Mr. Young provided the text message to the employer, who then requested that M.E. come to an investigation.

During the investigation, the employer investigated M.E. and requested that he provide his phone so as to review whether the text message was sent to Mr. Young or not. However, M.E. would not voluntarily give his phone to the employer. The employer determined that it could not access the phone unless the phone was surrendered voluntarily or it had a court order to do so. The investigator, while not concluding that M.E. was the culprit, indicated to M.E. that sexually explicit text messages are unacceptable, but then never followed up with Mr. Young to provide information as to the outcome of the investigation.

The Tribunal, determined that the employer, a corporation in this case, would not have been vicariously liable for violations under sections 5(2) and 7 of the Code, due to what is expressly stated in section 46.3(1). Section 46.3(1) specifically exempts  corporations from the application of 5(2) and 7, which are the provisions that deal with harassment and sexual harassment in the Code.

Despite finding that it was not vicariously liable, the Tribunal determined that as an employer it was required to take reasonable action to address complaints of harassment or discrimination, and had a “duty to investigate”.

The Tribunal outlined the following criteria it considered in order to determine whether an employer had met its obligations on investigation to provide a workplace free of harassment:

  1. Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
  2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
  3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

In this case, the Tribunal determined that even though the investigator and the employer took the complaint about the sexually explicit text message seriously, the failure to follow up with the complainant resulted in a breach of their duties under the Code.  At paragraph 82 of the decision, the Tribunal states the following:

The respondent did not meet its Code obligations regarding the investigation of the disturbing text message the applicant received not because it (and specifically Ms. Jellows) did not take the matter seriously, but because the result of the investigation was not conveyed to the applicant. I have found that this failure was incompetent, but not discriminatory.

The Tribunal awarded $2000.00 to the employee for compensation for failing to take reasonable steps to address the applicant’s complaint about the text message.

The takeaway for employers here is that the Tribunal is coming down hard on employers for improper investigations where harassment is involved, and employers should be aware of their investigation obligations under the Code. For another recent case dealing with the topic read Cooksville Hyundai, 2020 HRTO 499, it provides a good outline of requirements of employers in investigations.

If you have any questions about what type of investigation procedures you should be taking in respect of harassment, or are dealing with a harassment complaint give my firm a call, and we would be happy to help.