Employer had no right to information from chat; comments didn't affect workplace
An Ontario employer did not have grounds to fire five workers who made sexual comments about colleagues on a private group chat while off duty, the Ontario Grievance Settlement Board has ruled.
The test for discipline for off-duty conduct – generally and in the employer’s policy – was that the conduct has to impact the workplace, says Lorenzo Lisi, partner and leader of the Workplace Law Group at Aird and Berlis in Toronto.
“If I'm sending private notes to other people that never got into the workplace, am I liable to be terminated because I have thoughts or views that are inappropriate?” he says. “If I post them on Facebook or on LinkedIn, that might impact the employer’s reputation or have a detrimental impact on the workplace, but if I'm sending those in a private capacity, which doesn't get out into the workplace at all, then that's really where the breaking point is.”
Metrolinx is a regional transportation authority in the Greater Toronto and Hamilton Areas. It had a Workplace Harassment and Discrimination Prevention Policy that defined sexual harassment as a course of vexatious comment or conduct against a worker in a workplace, or sexual solicitation or advance by someone with power and who should reasonably know that it’s unwelcome. The policy stated that violations would result “in substantive sanctions up to and including termination.”
The policy also outlined a reporting and investigation process that required all employees to co-operate fully in any investigations under the policy. The process was initiated “by a complaint in writing filed by the complainant with his or her immediate manager.” The policy also listed other time-related benchmarks, including an investigative report within three months.
An Alberta arbitration decision involving sexual harassment showed that off-duty conduct that impacts the employment relationship can justify dismissal.
Comments in private group chat
In April 2020, an HR business partner at Metrolinx interviewed an assistant manager of bus operations. The assistant manager mentioned that a bus driver, “Ms. A,” had received screenshots of messages on the WhatsApp social media application with negative, sexual comments about her. The messages had apparently been written by another bus driver, JJ. Ms. A had told a supervisor in September 2019, but she didn’t want the matter investigated so she didn’t file a formal complaint.
The HR business partner reported the messages to Metrolinx’s Workplace Harassment and Discrimination Prevention Department. During the investigation, the investigator learned of other inappropriate comments about employees in a WhatsApp group chat with seven Metrolinx employees. All of them were bus drivers with seven to 10 years of service and no discipline.
The investigator interviewed the five employees who had made inappropriate comments in the group chat, along with Ms. A, the assistant manager, and two supervisors, over several months.
Ms. A said that she was upset when she received the screenshot, but she didn’t file a formal complaint because she didn’t want other drivers to know about it. She said the investigation was stressing her and she refused to say who sent her the screenshot. There was no evidence that any of the other employees who where subjects of the comments knew of them.
JJ was interviewed four times. He confirmed that he had the messages on his personal phone and the investigator asked him to provide additional messages. He was later asked for more messages and, when he balked, he was told that he wasn’t meeting his obligation to co-operate with the investigation and he could be disciplined.
If something an employee posts online creates potential harm to the employer’s reputation or a poisonous work environment, it could warrant disciplinary action, says a lawyer.
Private conversation
JJ said that he wanted to apologize to Ms. A for the comments, although they were in a conversation that he considered private and weren’t intended to be shared with anyone outside the group chat participants.
Another participant in the chat, JE, made sexual comments about current and former Metrolinx employees. In his interview, he said that he was repeating remarks from other people in a conversation that he considered private.
A third participant, MP, acknowledged the comments he made in the group chat and suggested that he would also like to apologize. Two other participants, SR and PS, made similar acknowledgements in their interviews.
On April 27, 2021, the investigation was completed and it determined that, on a balance of probabilities, the five workers had engaged in sexual harassment contrary to Metrolinx’s policy. In addition, JJ failed to provide additional WhatsApp messages when requested, which Metrolinx said was a failure to co-operate with the investigation.
Metrolinx terminated the employment of all five workers. The union grieved their terminations as unjust, arguing that the comments were made outside of work on the workers’ own time and none of the subjects of the comments knew about them other than Ms. A, who didn’t want to file a complaint.
Eighty-six per cent of Canadian employers would fire an employee based on inappropriate social media posts, according to a survey.
No impact on workplace
The board found that the policy covered harassment and discrimination “which occurs outside the workplace but which is having a negative impact within the workplace.” However, WhatsApp is an encrypted form of communication that is private to an approved chat group – unlike Facebook or Twitter - and the workers believed that their communications were private and wouldn’t be shared with anyone outside the group.
Given the lack of knowledge of the comments by anyone outside of the private chat group – other than Ms. A – the board determined that Metrolinx didn’t prove that there was any manifestation within the workplace. As a result, there was no sexual harassment warranting discipline, said the board.
The board also found that the only way for the investigator to discover the comments was to demand the messages from JJ’s personal phone, which amounted to a “fishing expedition” for information that Metrolinx did not have the right to obtain.
This case sets out a good test on making the distinction between private communications and those which aren’t private when investigating off-duty misconduct, says Lisi.
“[The board said that] unlike Facebook and Twitter and other social media networks, [WhatsApp] is an encrypted means of communication that is private to its users and where access to the group is controlled by the group itself,” he says. “Both the sender and receiver have a reasonable expectation of privacy, and that's part of the reasoning for the decision - if you have evidence which you never had a right to have, then you can't rely on that evidence.”
A worker’s angry, expletive-laden Facebook post against his employer was just cause for dismissal, an arbitrator ruled.
Inconsistent application of policy
The board noted that neither Ms. A nor the supervisor she had told about the screenshot were threatened with discipline as JJ was, despite their failure to promptly report their knowledge of the alleged sexual harassment.
“[Metrolinx has] a very complex policy and it's well written, but fundamentally the issue here is that they got information which they shouldn't have had,” says Lisi. “And they used the policy to say that if you're not giving us private information, then you're going to be deemed to be in violation of the policy.”
“They based the discipline for all of the workers on that information, which I think put it at risk for a determination that if the information was not properly attained, then everything falls,” he adds.
In addition, Metrolinx failed to follow the investigation process set out in its policy, said the board. The organization did not follow the time benchmarks and there wasn’t even an actual complainant. This was not a fair and impartial investigation as required by the policy, said the board.
The board determined all five workers were terminated without just cause. Metrolinx was ordered to reinstate them with no loss of seniority and compensation for lost wages.
Strong policies can help guide an employer through an investigation and disciplinary process, but they can be a double-edged sword, says Lisi.
“I think it provides some cover for employees who take the position that the punishment has to fit the crime and employers have to be very wary of what kind of information they gather to support any termination or discipline,” he says. “We have built up such inclusive and strong policies - which are appropriate - but in many ways now, if employers don't comply with them, they're going to be held responsible.”
Although Metrolinx had a detailed harassment policy, a social media policy might have helped as well, says Lisi.
“Employers seeking to discipline for off-duty conduct should have a strong social media policy to show what's right and wrong in terms of postings,” he says. “In addition to being able to say, ‘You're being disciplined because of off-duty conduct,’ you also want to be able to say, ‘You also breached our social media policy.”
See ATU, Local 1587 and Ontario (Metrolinx) (Juteram), Re, 2023 CarswellOnt 11202.
