The Ontario Superior Court of Justice has overturned an arbitrator’s decision that reinstated five GO Transit bus drivers who were fired by Metrolinx after allegations of workplace harassment via WhatsApp chats surfaced.
But it stopped short of dismissing the grievances over the terminations, instead directing them to be re-evaluated by a different arbitrator.
What happened
The drivers, all members of the Amalgamated Transit Union, Local 1587, were terminated following a Metrolinx investigation into their online communications, which were found to contain derogatory and sexist comments.
These comments, exchanged over WhatsApp on personal devices, targeted a female employee and were deemed to constitute sexual harassment under the workplace policies of Metrolinx.
In July 2023, an arbitrator deemed the terminations unjust, ruling that the conversations, conducted off-duty, did not fall under the employer’s purview. The arbitrator argued that Metrolinx lacked the authority to probe into the private online exchanges and reinstated the employees with compensation for lost wages. Metrolinx appealed.
The Court found the arbitrator’s decision to be unreasonable, emphasizing that workplace harassment policies extend to all employee interactions impacting the workplace environment.
Some victims of workplace harassment reluctant to report: Court
In the criticism of the initial arbitration, the Court highlighted the flawed logic that precluded a comprehensive investigation due to the absence of a formal complaint by the aggrieved employee.
“The arbitrator’s reasons, read as a whole, fail 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,” the Court said.
It said the arbitrator’s conclusion, that the lack of a complaint from the victim or any other active employee “should have been the end of the matter” is “wrong in law.” That perspective was indicative of the arbitrator’s approach to the issue and was “not an isolated misstep, but permeates his reasoning throughout,” the Court said.
“A victim’s reluctance to report or complain cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention,” it said.
Grievors ought to have known conduct was unwelcome
It noted the grievors ought reasonably to have known the conduct was unwelcome.
“When it became known to (the victim), it created a demeaning and offensive work environment that no employee should be compelled to endure,” the Court said.
The court underscored the necessity of employer diligence in investigating harassment claims to ensure a safe and respectful workplace. The decision reaffirms the employer’s obligation to investigate potential harassment, regardless of a formal complaint, as stipulated by the Occupational Health and Safety Act.
“The Employer’s duty to investigate is not just a duty owed to the complainant, but a duty owed to all employees in the workplace,” it said. “All employees – not just the direct victim of the comments – have a right to work in an environment that is free from demeaning and offensive comments.”
The case will return to a different arbitrator for a new hearing, reflecting the Superior Court’s directive for a balanced consideration of workplace harassment policies and employee privacy rights.
“While the Arbitrator’s decision was fatally flawed for the reasons set out above, there were numerous other issues addressed by the Arbitrator, including the appropriateness of the termination penalties imposed by the employer,” the Court said. “These issues should be reassessed in light of this Court’s reasons.”
Costs of $7,500 were awarded against the Union, Amalgamated Transit Union, Local 1587.
For more information, see Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII).
