Employers are obligated to investigate all workplace harassment. There does not need to be a formal complaint, as tends to be expected in workplace harassment policies. The employer’s knowledge of a potential workplace harassment incident is sufficient to trigger a workplace investigation. This is an obligation set out in the Occupational Health and Safety Act (OHSA). Generally, off-duty conduct is excluded when it does not affect the workplace.

With social media and modern technology, what is workplace conduct and what is off-duty conduct can become blurred. What happens if employees engage in an off-duty group chat? Do those messages become part of their workplace conduct even if the messages were sent outside of working hours? These were questions that were asked in the case Metrolinx v Amalgamated Transit Union, Local 1587 (2025 ONCA 415).

Metrolinx v Amalgamated Transit Union, Local 1587 (2025 ONCA 415)

In this case, it was discovered that five employees from Metrolinx (a government-owned regional transport provider) were part of an online “WhatsApp” texting group on their personal cell phones. In this chat, they made negative, derogatory, and sexist comments about other employees. This includes an allegation that one employee (referred to as Ms. A in the proceedings) performed sexual favours for career advancement. Although Ms. A did get a screenshot of these messages and reported them to her supervisor, she did not ultimately file a formal complaint. However, with Metrolinx becoming aware of the messages, it launched a formal investigation. During the investigation, Ms. A stated that she did not want the matter to be investigated or pursued. However, one of the employees involved in the WhatsApp messaging group shared the messages with the investigator, who found that the conduct of the five employees amounted to sexual harassment. After receiving the investigation report, Metrolinx terminated the employees on the basis that they engaged in sexual harassment. The Union filed grievances on the employees’ behalf for unjust dismissal.

In the initial hearing, the arbitrator granted the grievance and ordered the reinstatement of the grievor. The arbitrator provided lengthy reasons that were appealed up to the Ontario Court of Appeal. While the arbitrator noted that employers can discipline employees for their off-duty conduct, the employer must show that the misconduct seriously affected its reputation or legitimate business interest. The arbitrator found that the messages sent by the five employees on WhatsApp was off-duty conduct and did not fall within Metrolinx’s authority to discipline them, as it was a conversation that the employees reasonably perceived would remain private. The arbitrator also ruled that even if the WhatsApp messages fell within Metrolinx’s authority to discipline, Metrolinx’s finding of sexual harassment would not stand because the impact of the messages did not affect the workplace. The Arbitrator took the further position that even if Metrolinx did have authority to discipline the employees, and even if the communications were manifested in the workplace, Metrolinx failed to follow its own substantive and procedural safeguards, vitiating its actions in enforcing its own Policy. The arbitrator also stated that Metrolinx’s zero-tolerance stance for sexual harassment through its automatic termination of the employees is unenforceable and that Metrolinx should have considered a range of lesser penalties for the off-duty misconduct. The arbitrator concluded that the employees had been terminated without just cause and ordered that they be reinstated with back pay.

The Ontario Court of Appeal found in favour of Metrolinx. It found that Metrolinx does have authority over the employee’s conduct while they are off duty. The Court of Appeal noted several legal errors with the arbitrator’s reasoning, which makes the award unreasonable. The Court of Appeal stated that the Arbitrator failed to meaningfully address Metrolinx’s statutory obligations. It noted that the Occupational Health and Safety Act (OHSA) requires employers to investigate both “incidents and complaints” of workplace harassment. Thus, an investigation is required into an incident, even if there is an absence of a formal complaint. This is part of the duty to protect all employees and give them the right to work in an environment free from demeaning and offensive comments. What the policy may say cannot limit this statutory obligation. The Court of Appeal also noted that the arbitrator’s focus that it did not affect the workplace, because Ms. A did not file a formal complaint, does not mean that there was no harassment. The Court of Appeal stated that such a conclusion relies on rejected myths and stereotypes about how an employee in such a situation would respond. The Court found that the evidence showed that Ms. A was upset about the messages at the time that she reviewed them, which makes it a workplace issue. As such, the Ontario Court of Appeal dismissed the appeal and confirmed the order of the Divisional Court, which remitted the matter to the Grievance Settlement Board to appoint another arbitrator to determine the matter in accordance with the reasons provided by the Court of Appeal. The Court of Appeal also agreed to award Metrolinx costs of $20,000, all inclusive.

How Suzanne Desrosiers Professional Corporation can help

As the case in Metrolinx v Amalgamated Transit Union, Local 1587 (2025 ONCA 415) shows, employers must start an investigation as soon as they are aware of an incident where potential harassment may have occurred, even if the victim does not want to file a formal complaint. At Suzanne Desrosiers Professional Corporation, we have trained and experienced workplace investigators who can help investigate potential cases of workplace harassment that you are aware of. To speak to one of our workplace investigators about doing a workplace investigation, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.