The Ontario Superior Court of Justice (“ONSC” or the “Court”) recently released the decision of Metrolinx v Amalgamated Transit Union, Local 1587 [Metrolinx], involving the dismissal of five employees who engaged in workplace sexual harassment using the WhatsApp messenger platform. The Court’s ruling clarifies employer obligations in addressing incidents of harassment.

Facts

Five employees were dismissed after the employer discovered they had made negative, derogatory and sexist comments about female coworkers in a WhatsApp group chat. One of the female employees who was mentioned in the chat brought the messages to the employer’s attention during an investigation into an unrelated matter.

Although the female employee chose not to file a formal complaint, the employer initiated a formal investigation into the incident. However, the employee subsequently withdrew from participating in the investigation. After completing the investigation, the employer terminated the employment of all five employees who made the comments.

The union filed grievances on behalf of all five employees, and the grievances were referred to the Grievance Settlement Board (the “Board”).

Arbitration Decision

The arbitrator of the Board found that the employer terminated the employees without just cause, violating the collective agreement. As a result, the arbitrator ordered their reinstatement with back pay. The arbitrator found that although the conversations involved language serious enough to constitute sexual harassment, they did not meet the criteria for workplace sexual harassment. This was because the conversations occurred outside of work on the employees’ personal cellphones, in a setting generally inaccessible to the public. The arbitrator held that, in these circumstances, the employer did not have licence to intrude on their private electronic conversations. Additionally, the arbitrator found that the employer’s decision to investigate the incident, despite the refusal of the employee affected by the incident to file a complaint or participate in the investigation, constituted a conflict of interest, as the employer essentially substituted itself as the complainant.

Judicial Review

On judicial review, the ONSC overturned the arbitrator’s decision, remitting it back to a different arbitrator for reconsideration. The Court emphasized the employer’s statutory obligation under the Ontario Human Rights Code and Occupational Health and Safety Act to investigate incidents of workplace sexual harassment. The ONSC noted that this obligation applies regardless of whether a formal complaint has been made and arises as soon as the employer becomes aware of the harassment.

Additionally, the ONSC rejected stereotypes surrounding victims’ reactions to sexual harassment, noting that there could be many reasons why an individual may be reluctant to report or complaint about sexual harassment, such as embarrassment or fear of reprisal. Therefore, the Court criticized the arbitrator’s reasoning that the impacted employee’s reluctance to pursue a complaint meant there was no harassment.

The ONSC noted that the duty to investigate is not just owed to the employee making the complaint but is owed to all employees in the workplace, as employees generally have a right to be free from offensive comments in the workplace.

The Court also noted that the arbitrator placed too much weight on the five employees’ right to privacy and failed to consider that, regardless of the origin of the messages, they made their way into the workplace and became a workplace issue.

Takeaways for Employers

The Metrolinx decision provides important insights for employers on effectively addressing incidents of workplace sexual harassment:

1. Statutory Obligations to Investigate: Employers are required by statute to investigate incidents of workplace sexual harassment upon becoming aware of such incidents, regardless of whether a formal complaint has been made.
2. No Negative Inferences from Lack of Participation: Employers should understand that employees may be reluctant to file a formal complaint or participate in an investigation for various reasons, and such reluctance does not necessarily imply that harassment or other misconduct did not occur.
3. Scope of Workplace: Private electronic communications originating outside the workplace can become workplace issues if they enter the workplace, potentially creating risks such as the creation of a hostile work environment. Employers should be mindful of these risks and take steps to address them, including implementing appropriate workplace policies.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.