Termination of employment by an employer is governed by different laws, depending upon whether one is employed or is a member of a union. When employed in a non-unionized workplace, a person who feels they have been wrongfully terminated from their employment has several options to pursue remedies for such an alleged breach, including launching a civil lawsuit seeking reasonable notice damages. When a unionized employee feels that the termination of their employment is wrongful (called “unjust dismissal” when discussing unionized environments), recourse must be sought before an arbitrator who evaluates the circumstances, reviews the applicable collective agreement and determines appropriate remedies. If the arbitrator deems the termination unjust, the arbitrator may award several different remedies, including reinstatement of employment.

Reinstatement of employment is only available to unionized employees, as the courts of Canada are not empowered to order that a common law employer accept a terminated employee, even one who was wrongfully terminated at the behest of the employer, back into their employ. However, if an arbitrator orders an employee reinstated, the employer is entitled to seek judicial review of that decision before the Ontario Superior Court of Justice. In that case, the court will review the arbitrator’s decision and will determine whether it should be permitted to stand or should be sent back – either to the same or a different arbitrator, as ordered by the court – for redetermination.

Five Employees Terminated After Investigation Finds Harassment, Misconduct

The case of Metrolinx v. Amalgamated Transit Union, Local 1587 arose due to the termination of five male employees of Metrolinx. The employees came under investigation by the employer when a female employee discovered a private “WhatsApp” text chat in which the employees in question made sexist comments about herself performing sexual favours in return for advancement in her career. Although uncomfortable with the discovery, the female employee did not wish to initiate a complaint or investigation into the alleged WhatsApp chat because she did not want her coworkers to know that she had complained. However, once the employer’s HR department became aware of the allegations, they reported it to the employer’s Workplace Harassment and Discrimination Prevention Department, which commenced an investigation.

Throughout the investigation, the female employee at the centre of the complaint refused to participate due to her fear of retaliation and because she did not want to become known as a complainant in the workplace. Despite her reluctance to participate in the investigative process, the employer was satisfied, upon reviewing the Investigation Report generated by the investigator, that the five accused employees had engaged in sexual harassment and other misconduct that violated company policies and applicable legislation. As a result, all five employees were terminated for cause.

Union Grieves Termination of Employees

In the wake of the terminations, the union initiated a grievance on behalf of each terminated employee, which were referred to the Ontario Grievance Settlement Board for arbitration. The arbitrator who heard the complaint determined that although the employees’ conduct was “shameful and reflected poorly on their character”, the parties had engaged in the conduct on their own time, using their personal cell phones, and “through an on-line medium they reasonably believed and intended to be private to the Grievors and its other participants and not available to the public generally, in circumstances beyond the Employer’s authority.” The arbitrator was further satisfied the Employer did not have the right to intrude on employees’ private electronic conversations without “express contractual, statutory or judicial authority to do so”. The arbitrator found that because the communications were inaccessible to the public, they couldn’t constitute a form of workplace sexual harassment, even if the language used would qualify as such if made during work hours or in a public forum that had a hostile impact on employees in the workplace.

Moreover, the arbitrator concluded that the investigation carried out by the employer was flawed because the female employee had refused to file an official complaint; as such, the arbitrator found no investigation should have occurred. The arbitrator went even further and stated that to investigate the absence of a formal complaint means that the employer who elects to conduct such an investigation takes the complainant’s position, which places it into a position of conflict when it is also investigating the complaint. Finally, the arbitrator concluded that it was unfair that one of the grievors had been disciplined for failing to cooperate with the investigation while the female complainant suffered no such discipline for her similar reluctance to cooperate with the investigative process.

For all of these reasons, the arbitrator upheld each of the grievances and ordered the five dismissed employees to be reinstated to their employment at their original seniority positions and compensated for any earnings lost in the interim.

Employer Seeks Judicial Review of Reinstatement

The employer was immensely dissatisfied with the arbitrator’s decision. As such, its only recourse was to seek an application for judicial review before Ontario’s Superior Court of Justice. The courts review such applications on a reasonableness standard. This standard requires the Court to determine whether the arbitrator’s decision was justified and reasonable in relation to the facts and law.

Employers Required to Investigate Harassment Even in Absence of Formal Complaint

The Court noted that section 10(1) of Ontario’s Human Rights Code (the Code) defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Furthermore, sections 5(2) and 7(2) of the Code protect against harassment in employment and harassment because of sex in the workplace. Similar provisions are found in Ontario’s Occupational Health and Safety Act (OHSA). Moreover, the OHSA includes provisions that describe an “employer’s obligations to establish, post and implement policies concerning workplace harassment” and to “protect a worker from workplace harassment.”

Notably, the Court noted section 32.0.7(1)(a) of the OHSA imposes a duty on the employer to investigate both “incidents and complaints of workplace harassment”. The Ontario Labour Relations Board had interpreted this phrase to mean the Act contemplates an investigation of an incident even if it is not the subject matter of a complaint. As such, employers must take steps to deal with harassment once the employer finds out about it, regardless of whether any party has filed a formal complaint. In these situations, the Court found, the employer does not become the complainant when it initiates the investigation; no complainant is necessary.

Arbitrator Relied on Myths and Stereotypes About Sexual Harassment Victims

The Court also noted that the arbitrator appeared to have fallen into a pattern of behaviour against which the Supreme Court of Canada had been warning for several decades:

“Moreover, the Supreme Court of Canada has, for more than 30 years, been warning judges that it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault. In particular, a victim’s reluctance to report or complain about a sexual assault cannot be used to draw an adverse inference about her credibility …”

The Court acknowledged that several factors, including a fear of reprisal or further humiliation, can cause a victim’s reluctance to report sexual harassment. This reluctance to complain, however, does not relieve the employer of its statutory duty to investigate the incident once it comes to the employer’s attention. The Court concluded the arbitrator’s reasoning relied on the “myths, stereotypes and presumptions rejected by the Supreme Court of Canada” and was, therefore, unreasonable.

Arbitrator Was Too Focused on Grievors’ Privacy Rights

Finally, the Court agreed with the employer that the arbitrator was too focused on the grievor employees’ privacy rights, commenting:

“The fact is, whatever the Grievors’ intent, at least of their comments came to the attention of [the female employee] in the workplace. Given the nature of social media, and the fact that the number of employees who had access to the chat was not known, this was hardly surprising. The employees who participated in the chat were free to, and did, forward the message to other employees. Wherever it originated, the impugned conduct made its way into the workplace and, to that extent at least, became a workplace issue.”

Given all of the above considerations, the Court quashed the arbitrator’s decision and ordered the matter back before a different arbitrator for reconsideration.

Contact Grosman Gale Fletcher Hopkins LLP for Assistance With Workplace Harassment & Labour Law Matters in Toronto

The knowledgeable employment and labour lawyers at Grosman Gale Fletcher Hopkins LLP provide comprehensive legal solutions to employers and workers in matters involving workplace misconduct and harassment. Our firm is well-respected among the courts, labour arbitrators, and our peers, and we are among the most sought-after employment and labour law firms in Canada. We provide robust legal advice and representation to parties on both sides of the table in unionized and non-unionized workplaces.

Grosman Gale Fletcher Hopkins LLP is based in the heart of downtown Toronto, at the corner of Bay Street and Richmond Street. To schedule a confidential consultation with a member of our team, please contact us online or call 416-364-9599.