Off-Duty Sexual Harassment May Still Trigger A Duty To Investigate

In a significant decision for employers, the Ontario Court of Appeal in Metrolinx v. Amalgamated Transit Union, Local 1587, upheld the Divisional Court's ruling that quashed an arbitrator's decision reinstating five employees dismissed for off-duty sexual harassment. The case offers critical guidance on the scope of an employer's duty to investigate harassment and the application of workplace harassment policies.

Background

The employer terminated five employees after discovering they had exchanged derogatory and sexist messages about colleagues in a private WhatsApp group. Although the messages were sent off-duty using personal devices, one of the targeted employees received screenshots and became visibly upset at work. Despite her reluctance to file a formal complaint or otherwise participate, the employer initiated an investigation and ultimately dismissed the employees for cause.