Do employers need to investigate harassment which happens off work premises?
Short answer:
Yes, there could be an obligation to investigate, depending on the circumstances. Employers have a legal duty to investigate all instances of "workplace harassment", which may include harassment which takes place online, after hours and/or off-premises, so long as there is a connection to the workplace.
Long answer:
In today's society, with the prevalence of technology, as well as remote, hybrid, and all kinds of flexible work arrangements, the boundaries between work and personal life can get muddied.
But what happens when coworkers engage with each other outside of work, such as through online chats, hanging out, etc. and the conversation goes out of bound? Does the employer need to investigate? Can there be employment ramifications for the parties involved?
This was recently addressed by the Ontario Court of Appeal in the case of Metrolinx v. Amalgamated Transit Union Local 1587, 2025 ONCA 415. In this decision, the key issue was whether the employer, Metrolinx, had acted properly when terminating employees for cause due to an improper conversation on their personal phones.
To keep it simple, this is what happened in the case:
- Five unionized employees had a private Whatsapp chat group where they chatted on their personal cellphones.
- In the chat, they claimed that a female coworker had engaged in sexual conduct that allowed her to advance in the workplace.
- The chat was intended to be confidential, however, both the female employee and Metrolinx became aware of it.
- The female employee did not wish to make a complaint and wanted the matter forgotten ASAP.
- Despite this, Metrolinx investigated and demanded the chat records from one of the five chat participants by threatening discipline.
- All five workers were terminated for cause.
- The union grieved their terminations.
- The matter was dealt with in arbitration where the first arbitrator found that the termination was unjustified and ordered that Metrolinx reinstate the employees.
- Metrolinx brought the matter to the Divisional Court for judicial review.
- At the Divisional Court, the Court ruled in favour of Metrolinx, quashed the arbitration award and remitted the matter back to the Grievance Settlement Board for reconsideration by a different arbitrator.
- The union appealed the matter to the Ontario Court of Appeal.
- The Court of Appeal dismissed the union's appeal and remitted it back to arbitration.
So why was the union's appeal dismissed?
The Court of Appeal indicated that employees can be disciplined for off-duty conduct if such conduct seriously prejudices or injures the company's reputation or legitimate business interests, and the level of discipline is proportionate to the harm. In this case, it did not matter that the incriminating chat records were handed over by threats of discipline.
The Court of Appeal found that to justify the imposition of discipline for "off-duty" conduct, such as this, the employer must show:
- That the conduct was public or available to others; and
- That the conduct had a real, negative impact on the workplace or the target. This impact cannot be hypothetical or presumed.
The Court of Appeal also confirmed that it does not matter whether the victim wishes to file a complaint, employers have the legal duty to investigate any known workplace harassment, whether or not there is a complaint and whether or not the harassed employee wants the matter to be investigated. An investigation is required by the Occupational Health and Safety Act as soon as an employer becomes aware of instances of workplace harassment. In this case, it didn't matter that company policy required a complaint to be filed by the victim – no policy can override this statutory duty to investigate harassment.
After all, there may be times where there are stigmas and/or other personal reasons that may speak to the reluctance of a victim to make such complaint. Even then, this does not relieve the employer of its statutory duty to conduct an investigation to address the harassment and uphold the right of all employees, not just the victim, to work in a safe environment, free from demeaning and offensive comments.
Takeaways:
Although this decision was based on a unionized workplace, it provides helpful guidance and reminders to all Ontario-based employers of their statutory duties. Employers must investigate workplace harassment as soon as they learn about it, even if the conduct in question occurred after hours or off premises. Employers also have a duty to take reasonable precautions for the protection of workers. In practice, this means that if harassment is substantiated, the employer should take appropriate measures to address the harassment, which may include disciplining the perpetrator, to prevent recurrence and to protect their workers.
Also, it is notable that the chat in question was between co-workers who were discussing another co-worker. It is unclear if the outcome would have changed or potentially been impacted had the discussion been with a thirty party rather than co-workers in the same company.
If employers have questions about whether conduct is considered within the workplace or not, or their duty to investigate, please reach out. We'd be happy to provide tailored guidance and advice.
