Arbitrator orders reinstatement of 5 workers guilty of sexual harassment

An arbitrator in Ontario has ordered Metrolinx to reinstate five employees who were dismissed in 2021 for workplace sexual harassment, substituting lengthy suspensions for termination.

The decision—issued by arbitrator Janice Johnston on Oct. 9, 2025—concerns five employees who are members of Amalgamated Transit Union Local 1587.

Roughly four years ago, co-worker Ms. A received screenshots of these messages and alerted her manager but declined to file a formal complaint or disclose the identity of the person who sent her the screenshots. Despite there being no formal complaint, Metrolinx—which operates GO Transit, UP Express, and PRESTO—did an internal investigation and found that the five workers, who had between six and nine years of seniority at the time of their discharge, had engaged in sexual harassment, with three also found to have engaged in additional harassment contrary to the company’s Workplace Harassment and Discrimination Policy.

It dismissed the employees for cause, and the union grieved.

'Egregious' behaviour by Metrolinx workers

The case has gone through several legal proceedings, but in the most recent decision, arbitrator Janice Johnston decided on reinstatement.

She described the workers' conduct as “egregious,” stating, “it was extremely offensive and the comments made about female co-workers were shameful and reflected poorly on their character. The conduct of the grievors constitutes workplace sexual harassment and clearly is deserving of significant discipline.”

But the main issue is whether the workers’ violations warranted termination, said Johnston.

“All of the grievors have apologised for their conduct, recognised that the comments made were inappropriate and expressed regret for having made them.”

She said she carefully considered the evidence and submissions of the parties in this case and "taken into account the arbitral jurisprudence on the issue of termination for the misconduct engaged in by the grievors. I have come to the conclusion that reinstatement is appropriate.

“However, this should not be seen as a condonation of their conduct which is deserving of a lengthy suspension.”

Johnston substituted a four-week suspension for three of the workers, and a five-week suspension for the two others, directing Metrolinx to reinstate the employees with full service and seniority, and with compensation minus mitigation and the disciplinary suspensions.

A long-term employee whose conduct made his female co-workers uncomfortable deserved discipline but not dismissal, according to a previous Canada Industrial Relations Board ruling.

Years-long legal process on harassment case

Johnston’s decision follows a lengthy legal process. An earlier arbitration decision in 2023, which also reinstated the employees, was quashed by the Divisional Court and remitted to the Grievance Settlement Board.

In 2024, the Ontario Superior Court of Justice (Divisional Court) overturned an arbitrator’s decision on the same case, which had found that the employer had no authority to investigate alleged workplace harassment when the harassment occurred on personal devices and on personal time.

The Court of Appeal for Ontario upheld the Divisional Court’s ruling in June 2025, leading to the rehearing before Johnston.

Timeline of the case:

• Incident occurs (date not specified, but before 2021):
  • Five GO Transit bus drivers employed by Metrolinx participate in a WhatsApp group chat on their personal cellphones, sharing explicit, derogatory, and sexist messages about female co-workers, including Ms. A.
  • Ms. A receives screenshots of these messages and alerts her manager but declines to file a formal complaint or disclose the identity of the person who sent her the screenshots.
  • Despite the lack of a formal complaint, Metrolinx investigates and determines the five employees engaged in sexual harassment. All five are dismissed for cause.
• Union grieves dismissals (2021):
  • The union files grievances on behalf of the dismissed employees.
• Arbitrator’s decision (July 2023):
  • An arbitrator allows the grievances and orders reinstatement of all five employees, with no loss of seniority and with back pay.
  • The arbitrator finds Metrolinx did not have authority to investigate the harassment because it occurred on personal devices, on personal time, and there was no formal complaint.
• Divisional Court Judicial Review (April 2024):
  • The Ontario Superior Court of Justice (Divisional Court) reviews the arbitrator’s decision.
  • The Divisional Court finds the arbitrator’s decision unreasonable and quashes it.
  • The Court rules that an employer must investigate harassment under the Occupational Health and Safety Act (OHSA), even without a formal complaint, and that off-duty conduct can become a workplace issue if it enters the workplace.
• Union appeals to Court of Appeal (June 2025):
  • The union appeals the Divisional Court’s decision to the Court of Appeal for Ontario.
  • The Court of Appeal agrees with the Divisional Court, quashes the arbitration award, and reaffirms that an employer has a statutory duty to investigate both incidents and complaints of workplace harassment, even without a formal complaint.
• Arbitration Rehearing (September–October 2025):
  • The case is remitted back to the Grievance Settlement Board for a new hearing before a different arbitrator.
  • Hearings take place in September and October 2025.
• Latest development – new arbitration decision (October 9, 2025):
  • Arbitrator Janice Johnston issues a new decision.
  • Johnston finds the conduct was egregious and deserving of significant discipline, but reinstates the employees with lengthy suspensions instead of termination.

Previously, a British Columbia arbitrator upheld the dismissal of a male worker for knowingly submitting a false sexual harassment complaint against a female colleague.