In the recent case of Metrolinx v. Amalgamated Transit Union, Local 1587, the Ontario Court of Appeal delivered an important decision for employers navigating their obligations when addressing allegations of workplace harassment. The ruling confirms that an employer’s duty to investigate under the Occupational Health and Safety Act extends to incidents of alleged harassment, even when they occur off duty, on personal devices, and outside the physical workplace, if they have a workplace impact.
The Court upheld a Divisional Court decision that set aside an arbitrator’s order reinstating five unionized employees terminated for off-duty sexual harassment. The case reinforces that employers cannot be relieved of their duty to investigate these incidents merely because the conduct occurred privately or the complainant is reluctant to file a formal grievance.
Private Group Chat, Public Workplace Consequences
Metrolinx, a provincially owned transit provider operating GO Transit in Ontario, maintains policies to prevent harassment and discrimination, including explicit provisions addressing social media misconduct that impacts the workplace.
In 2020, Metrolinx learned that five employees participated in a private WhatsApp group where they exchanged derogatory and sexist messages about co-workers, including allegations that a female employee (“Ms. A”) performed sexual favours for career advancement. Ms. A received screenshots of these messages in 2019 and informed a supervisor, but declined to file a formal complaint.
Months later, after HR became aware of the screenshots, Metrolinx initiated a formal investigation. Ms. A confirmed receiving the messages but reiterated her wish not to pursue the matter. During interviews, one of the grievors shared partial screenshots of the chat. The investigation concluded that the messages constituted sexual harassment, and all five employees were terminated for cause.
The union grieved the terminations, and the matter proceeded to arbitration.
Arbitrator Reinstates Employees, Found Employer Lacked Authority Over Private, Off-Duty Chat
The arbitrator identified four main questions:
- Did Metrolinx have authority over off-duty conduct?
- Was there evidence that the harassment’s impact was “manifested within the workplace” under the policy?
- Did procedural flaws undermine Metrolinx’s reliance on its policy?
- Was termination an appropriate penalty?
The arbitrator concluded that Metrolinx lacked authority to discipline the employees for conduct in a private, encrypted chat outside of work. He found no evidence of workplace impact beyond Ms. A’s temporary upset and further determined that the employer failed to follow procedural safeguards in its policy. He also rejected Metrolinx’s “zero tolerance” approach as an inflexible disciplinary practice. On that basis, he ordered reinstatement with full back pay.
Divisional Court Overturns Arbitrator’s Decision, Points to Employer’s Duty to Investigate
Metrolinx sought judicial review. The Divisional Court quashed the arbitration award, finding it unreasonable for several reasons. Firstly, it noted that under section 32.0.7 of the Occupational Health and Safety Act (OHSA), employers must investigate both “incidents and complaints” of workplace harassment. The court found that this obligation arises even without a formal complaint.
The court also acknowledged that the messages caused Ms. A emotional distress and could easily have been circulated further. This satisfied the requirement that the harassment impacted the workplace. It meant that the private nature of the chat did not immunize it from discipline.
Even though the employer deviated from the timelines under its internal policies, the court found this didn’t negate its statutory duties. As a result, the court remitted the matter to the Grievance Settlement Board for hearing before a different arbitrator.
Court of Appeal Affirms Employer’s Statutory Obligations, Highlights Victim Behaviour Stereotypes
The Union appealed, but the Court of Appeal dismissed the appeal, finding the original arbitration award unreasonable. The Court held that the arbitrator had failed to properly recognize the employer’s statutory obligations under OHSA.
The Court of Appeal also disagreed with the arbitrator’s conclusion that Ms. A’s reluctance to pursue a complaint meant no harassment occurred. The Court denounced this line of reasoning as relying on false stereotypes about how an employee in this situation would be expected to respond, stating:
“He erred in concluding that Ms. A’s reluctance to pursue a complaint meant that the impugned comments did not have a negative impact on her or within the workplace, and there was therefore no harassment. The reluctance of a victim of sexual harassment may be caused by many factors, but that reluctance does not relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention …”
Takeaways for Ontario Employers Dealing With Workplace Harassment Issues
The Metrolinx case highlights legal principles critical to Ontario employers’ obligations when facing harassment concerns in the workplace.
1. Off-Duty Conduct Can Be Workplace Misconduct
The Court of Appeal reaffirmed that employers have the authority to discipline off-duty conduct if it has a real and demonstrable workplace impact. Here, the sexist messages, although exchanged privately, were shared with a co-worker, which upset her at work and had the potential to undermine workplace safety and culture.
Employers need not prove public dissemination; actual workplace impact is sufficient.
2. The Duty to Investigate Extends Beyond Complaints
Section 32.0.7(1) of the OHSA requires investigation into both incidents and complaints. The Court rejected the arbitrator’s view that Ms. A’s reluctance to complain ended the matter. The employer’s duty exists to protect all employees from a hostile work environment, regardless of whether a victim participates in the process.
This interpretation aligns with the remedial purpose of workplace safety legislation.
3. A Victim’s Reluctance to Complain Does Not Negate Harassment
The Court cautioned against relying on stereotypes about how victims “should” behave. Fear of retaliation, emotional exhaustion, or distrust in the process can all explain the reluctance to formally complain. Such reluctance does not erase the underlying conduct or its impact.
Employers should treat any credible incident that comes to their attention as triggering an obligation to assess and, if warranted, investigate.
4. Privacy Arguments Have Limits
The arbitrator had likened the WhatsApp conversation to a private backyard conversation, beyond the employer’s reach. The Court disagreed, noting that once the content reached the workplace, it became a legitimate matter for investigation and discipline. The fact that the investigator obtained the messages from an employee’s personal phone did not exceed her authority.
Employers may request relevant evidence from personal devices when investigating workplace misconduct, provided the requests are reasonable and proportionate.
5. “Zero Tolerance” Policies Still Require Contextual Discipline
While the Court did not directly reinstate the terminations, it signalled that discipline must consider proportionality, mitigating factors, and the specifics of each case. Automatic dismissal without considering the nature and severity of the conduct can be problematic.
However, in this case, the overarching issue was whether the investigation and discipline were permissible at all; the proportionality question will be reconsidered by a new arbitrator.
Best Practices for Ontario Employers
In light of the findings in Metrolinx, Ontario employers should implement certain best practices for handling harassment concerns under the OHSA.
Review and Update Policies
Employers should ensure workplace harassment policies reflect statutory duties under the OHSA, particularly the obligation to investigate incidents regardless of whether a complaint is filed. Policies that suggest otherwise may be overridden by law.
Explicitly address off-duty and social media conduct, clarifying that such behaviour may lead to discipline if it affects the workplace.
Train Investigators on Legal Obligations
Internal or external investigators must be aware of statutory duties and the limits of their authority. They should avoid unnecessary procedural deviations that could be challenged later, but must not interpret internal policies in a way that undermines legal obligations.
Ensure Discipline is Proportional to the Misconduct
Even where serious misconduct is established, employers should assess the full context, including the employee’s history, the nature of the misconduct, and mitigating circumstances. A documented proportionality analysis strengthens the defensibility of disciplinary decisions.
Balance Privacy with Workplace Safety
Requests for personal communications should be tied directly to the scope of the investigation and supported by a clear rationale. Employers should communicate these reasons to employees and, where applicable, rely on policy provisions requiring cooperation.
Willis Business Law: Windsor-Essex Employment and Labour Lawyers Advising on Workplace Harassment Issues
Workplace harassment issues can be complex, especially when off-duty conduct is involved. If you are an Ontario employer seeking guidance on your obligations under the Occupational Health and Safety Act or need assistance conducting a legally compliant workplace investigation, the employment and labour lawyers at Willis Business Law can help. Contact us online or call 519-945-5470 to discuss your situation and protect your employees and your organization.