Government looks to protect workers against virtual harassment

By Tony Poland, LegalMatters Staff • A move by the Ontario government to protect against virtual harassment to reflect the change in modern workplaces will bring “more clarity to the law,” says lawyer and workplace investigator Rupa Karyampudi.

In May, the government invited comment on Bill 190, Working for Workers Five Act, 2024, which would amend the Occupational Health and Safety Act (OHSA) and the Employment Standards Act (ESA)

Karyampudi, of Mortimer Khoraych PC, says of the many suggested updates, the proposal that caught her attention is one that would expand the definition of workplace harassment and workplace sexual harassment to include virtual harassment.

“In light of the evolving nature of work, the expansion of remote work and the increasing use of social media and other platforms, this proposal is very much needed,” she tells LegalMattersCanada.ca. “In terms of our law firm’s mandate, this should be particularly helpful when it comes to conducting workplace investigations.

“Currently under the OSHA, the employer must provide a safe workplace, which includes preventing sexual harassment and harassment in general. But the definition of workplace is a bit vague, leaving a gap,” Karyampudi explains. “This proposed amendment will help close that somewhat. And based on my research, Ontario would be the first jurisdiction in Canada to directly address virtual harassment.”

The employment landscape has changed

COVID restrictions several years ago led to the rise of remote work. While an increasing number of people have since returned to a traditional office setting the employment landscape has changed, she says.

“As a result, the line tends to blur when it comes to what defines a workplace,” says Karyampudi. “What the government is proposing makes sense. It provides more clarity to the law.”

She points to the Ontario Superior Court judgment in Metrolinx v. Amalgamated Transit Union, Local 1587 as proof of the need to update workplace legislation.

The ruling followed a judicial review of an arbitrator’s decision to reinstate five bus drivers who had been terminated for workplace harassment as a result of inappropriate comments made on WhatsApp.

Court heard the drivers were in a group chat on their personal cellphones in their off hours. During the chat, the five alleged that a female colleague referred to as Ms. A, traded sexual favours for employment advantages.

Human resources department investigated

Screenshots of the messages were forwarded to Ms. A who reported it to her supervisor. While she was upset by the messages, she decided not to file a complaint. However, Metrolinx’s human resources department learned of the incident and investigated.

The five drivers were subsequently terminated and grieved the dismissals.

During a Grievance Settlement Board hearing, the arbitrator said while the drivers’ text messages were “shameful and reflected poorly on their character,” he noted that they “occurred outside the workplace on the Greivors’ own time, using their personal cellphones through an on-line medium they reasonably believed and intended to be private to the Greivors and its other participants not available to the public generally, in circumstances beyond the Employer’s authority.”

According to the judgment, the arbitrator found that the employer did not have “licence to intrude on their private electronic conversations without express contractual, statutory or judicial authority to do so.”

Because their electronic communication was “inaccessible to the public generally” it could not constitute workplace sexual harassment even if the same language would qualify as a form of sexual harassment “if made at work during working hours or in a public forum having a demonstrated hostile impact on employees in the workplace,” court heard.

The arbitrator also concluded, “When Ms. A declined to file a complaint of sexual harassment … and no other active employee would, that also should have been the end of the matter.”

Court found the arbitrator erred

However, in his ruling, Justice Robert E. Charney found the arbitrator erred because he failed “to recognize that while some victims of workplace harassment are reluctant to report harassment or participate in the resulting investigation, their employer remains obligated to investigate such behaviour and to protect the workplace from a hostile or demeaning work environment.”

Ultimately, the court quashed the arbitrator’s decision and sent the matter back to a different arbitrator for reconsideration.

Karyampudi, who was not involved in the case and comments generally, says the Metrolinx decision “is a good example of the gap that exists in the law.”

“This judgment illustrates how certain behaviour wasn’t addressed by legislation directly because the harassment was virtual and it was on private phones,” she says. “It was on a platform that wasn’t the employer’s platform. This is why Bill 190 can help to close that gap. “The Metrolinx ruling and the proposed amendment is an example of how both the courts and legislation are catching up to the reality of today’s changing workplace.”

Karyampudi says while the group chat was held outside work hours, the intended target of the salacious texts found out about it along with other employees.

‘This behaviour found its way into the workplace’

“In that sense, this behaviour found its way into the workplace and therefore it became a workplace issue,” she says. “At that point, the employer had a duty to investigate.”

Failing to investigate comes with consequences, Karyampudi notes. A company can face a lawsuit, be in violation of employment laws, lose valuable employees and the business’s reputation can be called into question, she says.

The proposed law would update OHSA definitions to include harassment virtually through the use of information and communications technology, says Karyampudi.

“The parameters would be much more broad,” she says. “It would place more obligations on employers to investigate cases of harassment or sexual harassment that happen in the virtual sphere.”

Bill can be beneficial in collecting evidence of malfeasance

From an investigative perspective, Bill 190 can be beneficial in collecting evidence of malfeasance, Karyampudi says
“It can be easier to collect digital evidence. Whereas when you are investigating verbal harassment in the workplace it is a credibility assessment,” she says. “It can become a ‘He said, she said’ situation. It can be difficult when you are relying on conflicting eyewitness testimony.”

However, Karyampudi says it is important not to rush to judgment even when there is digital evidence “because of AI deep fakes, which can digitally manipulate evidence.”
“The other problem that I foresee is the scope of investigations could get larger because some of these chat groups can have many people participating, especially larger organizations,” she says. “What happens if people are liking a harassing post, for example? Should they also be investigated? It can muddy the waters. What are people’s culpabilities in terms of engaging in harassment?”

In the end, employers have a duty to establish a workplace violence and harassment policy while remaining flexible to meet new employment challenges, Karyampudi says.

“Workplace policies often place higher standards on employees than legislation,” she says. “Legislation is essentially the bare minimum of what employers must do. When they are drafting policies, employers should consider a social media or virtual communications policy.”

“Employers must also be vigilant and investigate when they are made aware of incidents of harassment.”

More from Mortimer Khoraych PC:

Toronto firm finds the answers that matter in workplace investigations