Employees’ Online Misconduct While Off Duty Can Establish Cause for Discipline/Dismissal
Employees often believe that their online activities while off duty are private and none of their employer’s business, but many later learn that they are very mistaken. A recent judicial review decision by the Divisional Court of the Ontario Superior Court of Justice (the “Court”) illustrates that online misconduct by employees while off duty can establish cause for discipline and/or dismissal, and that employees do not have a reasonable expectation of privacy in online group chats with other employees who are free to forward their messages to anyone.
In Metrolinx v. Amalgamated Transit Union, Local 1587[Metrolinx], the Court overturned an earlier decision by an arbitrator ordering the reinstatement of five grievors who had been dismissed for cause after making negative, derogatory, and sexist comments about a female co-worker in an online conversation over WhatsApp.
Metrolinx is a positive decision for employers, in that it affirms that they have the right to investigate misconduct related to the workplace even where it takes place online and/or off duty, and that employees’ privacy interests will generally not shield them from consequences if they harass their co-workers online.
Background
In April 2020, while Metrolinx’s HR department was conducting an unrelated investigation, it was informed by an employee that five GO Transit Bus Drivers were engaging in an online conversation over WhatsApp which included negative, derogatory, and sexist comments about a female co-worker (“Ms. A”). These comments alleged that Ms. A offered certain sexual benefits in order to advance her career, in addition to similar derogatory and sexist comments about other female co-workers.
At the time, Ms. A was a GO Transit Bus Driver and an acting supervisor. Screenshots of the grievors’ WhatsApp conversation had previously been sent to Ms. A by a co-worker, and she reported it to her supervisor in 2019. However, Ms. A did not want to file a formal complaint or have the matter investigated.
Nonetheless, Metrolinx subsequently commenced an investigation once its HR department became aware of the WhatsApp conversation. During the investigation, one of the grievors accessed the WhatsApp group chat in front of the investigator and sent screenshots of it to them. These screenshots included disturbing and highly inappropriate salacious, derogatory and sexist commentary directed at Ms. A.
When Ms. A was interviewed by the investigator, she stated that she got upset and emotional when she first saw the messages about her, but that she did not want to file a formal complaint or participate in the investigation any further. Ms. A also stated that she did not want the grievors to know that she had complained about them.
The investigation was concluded in May 2021, and Metrolinx dismissed the five grievors for cause because it found that they had each engaged in workplace sexual harassment. In response, Amalgamated Transit Union, Local 1587 (the “Union”)— the union representing the grievors—filed grievances challenging each of their dismissals. These grievances were then referred to arbitration, and the arbitrator rendered a decision in July 2023.
The Arbitrator’s Decision
The Arbitrator upheld the grievances at arbitration, holding that Metrolinx did not have cause to dismiss the grievors. Accordingly, they ordered Metrolinx to reinstate the grievors to their employment without any loss of seniority or compensation.
In reaching this conclusion, the arbitrator found that Metrolinx “did not have license to intrude on [the grievors’] private electronic conversations without express contractual, statutory, or judicial authority to do so”. Moreover, the arbitrator found that the WhatsApp conversation could not constitute workplace sexual harassment because it was “inaccessible to the public generally”. Furthermore, the arbitrator held that Metrolinx failed to conduct a fair and impartial investigation into the allegations against the grievors because Ms. A refused to cooperate in the investigation, such that Metrolinx was “both the complainant and the investigator”. Finally, the arbitrator further concluded that there was no evidence of any negative impact “being manifested in the workplace”, and that Ms. A’s refusal to file a complaint demonstrated that she did not believe she was a victim of sexual harassment.
As a result, the arbitrator ordered Metrolinx to reinstate the grievors, which Metrolinx challenged by seeking judicial review.
The Divisional Court’s Decision
The Court granted Metrolinx’s application for judicial review and overturned the arbitrator’s decision due to it being unreasonable. In reaching this conclusion, the Court held that Metrolinx was required to investigate and address the alleged workplace sexual harassment by the grievors, despite Ms. A being reluctant to complain or participate in the investigation. This is because the Ontario Occupational Health and Safety Act requires employers to investigate and address all complaints and incidents of workplace harassment or sexual harassment they are aware of, regardless of whether the victim wants to participate in the investigation.
Moreover, the Court further held that it is an error for an adjudicator to infer that a person did not suffer sexual harassment because they were reluctant to report it. The Court noted that there are many reasons why a victim may be reluctant to report sexual harassment, including embarrassment, fear of reprisal, and the prospect of further humiliation. Accordingly, the Court found that the arbitrator erred in finding that there was no harassment simply because Ms. A did not want to pursue a complaint. Similarly, the Court found that it was unreasonable for the arbitrator to find that there was no evidence of the comments causing a negative impact on the workplace, given that Ms. A stated that the messages upset her and caused her to become emotional.
Finally, the Court held that the arbitrator was too focused on the grievors’ privacy interests, and that the WhatsApp conversation became a workplace issue when it was forwarded to Ms. A and other employees.
In the result, the Court overturned the arbitrator’s decision and remitted the matter to a different arbitrator to determine whether dismissal was warranted in the circumstances, or whether a lesser form of discipline was justified.
The Bottom Line
Metrolinx is a positive decision for employers which demonstrates a few important points for employers to bear in mind when investigating and addressing workplace harassment and sexual harassment.
First, employers are legally obliged to investigate incidents of workplace harassment or sexual harassment that they become aware of, even where the victim does not want to make a complaint or participate in the investigation. For this reason, all employers would be well-advised to ensure that their workplace harassment policy requires employees to participate in any investigation into allegations of workplace harassment or sexual harassment.
Second, employers have the right to address online harassment of an employee by their co-workers, even when it takes place when the employees are off duty. Likewise, employees’ privacy interests will not shield them from consequences where they make harassing comments in an online chatroom which is accessible to other employees of the company, particularly where the harassing messages are then forwarded to others in the workplace.
Finally, just like an adjudicator, an employer should never infer that an incident of alleged harassment was not harassment simply because the victim was reluctant to report it. There are many reasons why victims do not report sexual harassment, and employers who assume that a victim was not harassed due to their reluctance to report it or participate in an investigation do so at their own peril.
If you have any questions or require any assistance with investigating or addressing workplace harassment or sexual harassment, please do not hesitate to contact us for expert legal advice.
