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WHEN IS HARASSMENT "IN THE WORKPLACE"?
In the recent case of Metrolinx v. Amalgamated Transit Union, the Ontario Court of Appeal upheld a divisional court ruling quashing the decision of an Arbitrator who had reinstated five employees following their termination for workplace sexual harassment. The case is important for employers because it illustrates that Courts will take an expansive view of what is considered "workplace conduct" in dealing with harassment.
Facts:
The Union represented five employees of Metrolinx, a regional transportation provider, facing termination with cause for conduct amounting to workplace sexual harassment. In September of 2019, the workers exchanged a series of messages on the platform "WhatsApp" containing derogatory and sexist remarks against a female co-worker. Specifically, these communications referenced allegations of this "anonymous" female employee exchanging sexual favors for professional advancement.
In April of 2020, the HR department of Metrolinx received screenshots of these messages and subsequently initiated an investigation, the result of which was termination with cause for the five employees involved.
Initial Ruling of the Arbitrator:
Grievances about these terminations were raised by the Union. The Arbitrator reinstated the workers. The actions of the employer were found to be unreasonable, as the Arbitrator considered these terminations to be predicated on a lack of procedural fairness and investigative legitimacy and because the Arbitrator found the conduct to have occurred outside the scope of the workplace.
Metrolinx was found to have not conducted a fair and impartial investigation since they had simultaneously operated as both the complainant and investigator, which resulted from a lack of participation from the victim of the alleged sexual harassment. This was found to be contrary to Metrolinx's investigative policy, which stated that an investigation into workplace sexual harassment must be filed by a complainant, which complaint had never occurred. Secondly, the Arbitrator found that the victim's unwillingness to file an official complaint was evidence that the "WhatsApp" messages did not result in a negative impact on her or the workplace. Lastly, the Arbitrator found that the "WhatsApp" chat was not properly the subject of a workplace harassment investigation since it occurred outside of work and lacked a reasonably foreseeable negative impact on the workplace. Metrolinx was ordered to reinstate the terminated employees with full seniority and back pay.
Divisional Court:
The Arbitrator's decision was appealed to the Ontario Divisional Court, which found the Arbitrator's decision to be unreasonable. The Court rejected the notion that the employer had no authority to investigate harassment in this instance. The Court noted that regardless of the presence of a complainant, the employer retains an obligation to investigate any incidents of workplace harassment brought to their attention. This obligation supersedes any procedural requirements outlined in a company's policy and removes the necessity of a specified complainant. The Court also found that this investigation did negatively impact the workplace since the sharing of the "WhatsApp" text messages eventually reached the victim, constituting a negative effect on the workplace. Lastly, the Court rejected the Arbitrator's finding that the victim's refusal to file an official complaint could be used to discount the negative effect that the harassment had caused. The Court quashed the reinstatement order, sending the matter back to be reassessed by a new Arbitrator.
Ontario Court of Appeal:
This matter was brought to the Ontario Court of Appeal, where the Union argued the Divisional Court had erred in quashing the reinstatement of the employees. However, like the Divisional Court, the Court of Appeal found that the Arbitrator had failed to recognize the obligation of Metrolinx to investigate incidents of workplace sexual harassment, while also finding that he had improperly disregarded the existence of a negative effect within the workplace resulting from the "WhatsApp" messages. The Court reemphasized the warning against relying on stereotypes and myths as to how a victim should behave. These findings resulted in an upholding of the Divisional Court decision and the matter was sent back for a reassessment by a new arbitrator.
Key Takeaways:
This case serves as a reminder to employers that they will be required to investigate sexual harassment incidents where they impact the workplace, even where the impugned conduct occurred outside of the workplace, and regardless of a participating complainant's presence. Employees will not be immune from investigation because they viewed the harassing behaviour to amount to private conversations between workplace friends, even where the behaviour took place outside of the workplace. If the harassing conduct has an impact on the workplace, a workplace investigation will properly follow.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
