Ontario Divisional Court finds Private Group Chats can lead to Discipline in the Workplace
On April 2, 2024, the Ontario Divisional Court issued its decision in Metrolinx v. Amalgamated Transit Union, Local 1587, a judicial review of an arbitration ruling by the Grievance Settlement Board (GSB). The case highlights that private group chats can give rise to workplace discipline and confirms that employers have a statutory obligation to investigate harassing behaviour and protect against hostility in the workplace regardless of whether a victim cooperates.
The Arbitrator’s Decision
The arbitration centered on whether the termination of the five employees was appropriate after their conduct in a WhatsApp group chat was investigated. The employer’s human resources department discovered the chat during an unrelated investigation. The messages contained offensive, sexist, and derogatory remarks about coworkers, primarily women, including lewd suggestions about how a female employee (“Ms. A”) allegedly obtained a promotion through sexual favours.
Although Ms. A received screenshots of these messages and reported them to her supervisor, she chose not to file a formal complaint or participate in an investigation. Despite her reluctance, the employer proceeded with an investigation, ultimately terminating the employees involved.
The arbitrator concluded that the terminations were unjustified and ordered reinstatement with back pay. Key findings supporting this decision included the fact that the WhatsApp messages were intended to be private, and the employer lacked “express contractual, statutory, or judicial authority” to access them. The arbitrator also found that Ms. A’s refusal to file a formal complaint or participate undermined the investigation’s impartiality, creating a conflict of interest for the employer acting as both “complainant” and “investigator.” Ms. A’s refusal to cooperate indicated she did not perceive the conduct as harassment or indicative of a hostile work environment. Accordingly, the arbitrator found that there was no evidence of the messages negatively affecting the workplace.
Judicial Review by the Divisional Court
The Divisional Court concluded that the arbitrator’s reasoning was fatally flawed and remitted the matter to a different arbitrator for reconsideration.
In quashing the decision, the Court held that the grievors’ claims of privacy were outweighed by the fact that the WhatsApp messages impacted the workplace once they came to Ms. A’s attention. The Court noted that the nature of social media inherently involves the risk of messages being shared, as occurred in this case.
The Court further found that the arbitrator failed to acknowledge the employer’s statutory obligation to investigate workplace harassment under the Ontario Human Rights Code and the Occupational Health and Safety Act (OHSA), regardless of whether a formal complaint was made. It emphasized that this duty ensures a workplace free from offensive and demeaning behaviour, protecting all employees.
The Court went on to make clear that it was legally incorrect for the arbitrator to conclude the investigation should have ended because Ms. A or other employees did not file a formal complaint. The arbitrator improperly relied on assumptions about how a victim of sexual harassment is expected to react, ignoring that reluctance to report harassment may stem from various factors, such as embarrassment, fear of retaliation, or the hope that the behaviour will stop.
The Divisional Court’s decision underscores several key takeaways for employers, including:
- Private conversations on platforms like WhatsApp can become workplace issues if they affect employees or the workplace environment;
- Employers are legally required to investigate potential harassment, regardless of a victim’s reaction or willingness to participate. Victims may avoid filing complaints or participating in investigations for various reasons, including fear of reprisal or further harassment. Such reluctance cannot negate an employer’s obligation to act; and
- Employers should reject outdated assumptions about how victims of workplace harassment “should” behave, recognizing that atypical reactions should not undermine the seriousness of harassment claims.