Off duty misconduct: GO Transit firings offer lessons on workplace investigations

The conversations were conducted off-hours, using personal devices, and made references to her performing sexual favours for career advancements, among other things.

Screenshots of the messages were uncovered during a separate workplace investigation HR was conducting at GO Transit. While the victim had told her supervisor about the issue when she became aware of it in 2019, she did not file a formal complaint because she did not want the matter investigated.

But as soon as the employer is made aware of misconduct, regardless of how it found out, it triggers a duty to investigate, according to Lai-King Hum, founder of Toronto-based Hum Law Firm.

“Under (Ontario’s) Occupational Health and Safety Act, the obligation to have a safe, harassment-free workplace isn’t just about an employee who complains,” she said. “It’s about all the employees. It’s about keeping the workplace safe and harassment free.”

Arbitration and court rulings

The Amalgamated Transit Union (ATU) grieved the termination of the workers and found a sympathetic ear when the case went to arbitration to 2023.

The arbitrator said Metrolinx pursued an “expansive fishing expedition to discover and then prosecute five employees engaged in private off-duty communications among a closed group.”

While stopping short of condoning the behaviour, the arbitrator said “the employer is not the custodian of the character of its employees in their private lives, which it had no right to intrude upon without establishing a negative impact of the… off-duty communications manifested within the workplace.”

The arbitrator overturned the dismissals and ordered the drivers to be reinstated. Metrolinx appealed that decision, and in April this year the Ontario Divisional Court released its ruling that was critical of the arbitrator’s line of reasoning — particularly the idea that the victim’s failure to file a complaint should have been the end of the matter.

Hum said it’s important to remember that victims are often unwilling to speak up for a variety of reasons.

“Victims often have traumatic responses to these kinds of situations, and they may be reluctant to report, they may be reluctant to complain,” said Hum.

In this case, the text messages may have been shared outside the workplace, and not on employer-issued devices, but they absolutely found their way into the workplace, she said. Plus, what message does it send to other employees — such as the ones who bring the wrongdoing forward — if management turns a blind eye, said Hum.

“What are they going to think if this kind of behaviour, which is sexual harassment, is allowed to continue” she said. “(The duty) is triggered as soon as an employer knows that there is an incident or a complaint — and those are the exact words in the OHSA — it’s an incident or a complaint.”

The fact the conduct took place off-duty matters, she said, but the facts of each case — and the organization itself — need to be taken into account.

“Here, we’re dealing with five employees who are GO Transit workers. They deal with the public and GO Transit, or Metrolinx, would be concerned about its public reputation,” said Hum. “It may have been a private conversation, but it did leak out. Another employee learned about it and sent it to the employee, who decided not to complain, but it does impact the workplace.”

Conducting the workplace investigation

Geoffrey Lowe, as associate at Rudner Law in Markham, Ont., said any evidence of wrongdoing requires some digging on the employer’s part.

“That’s the point of the investigation process. The preliminary investigation can see if there’s any basis to this allegation or basis to the rumour,” he said. “Watergate started out because they heard there were potentially people going into the hotel looking for stuff.”

The first step for employers, when faced with a complaint or evidence of wrongdoing, is to determine who will conduct the investigation, said Hum. Depending on the situation, and the size of the organization, it might be appropriate for HR to handle it.

“If it doesn’t involve anyone in management, and HR doesn’t have any conflicts of interest, then they could probably handle it,” she said. “The investigation, in any case, is supposed to be appropriate to the circumstances.”

If the matter is more complex, or involves management or other conflicts of interest, then an external investigator should be brought in, she said.

The next step is conducting the investigation. In the GO Transit example, Hum would start with the person who brought the text to the employer’s attention — which would also help determine how widely it was shared.

“Then, you interview the person who was affected,” she said. “Her reaction to it is important, to some extent, but it’s an objective test — whether a ‘reasonable person’ would be offended by what has been communicated.”

It’s also important to give both sides the opportunity to respond and explain what happened, she said.

Justifying dismissal

Whether or not the behaviour uncovered justifies no action, some discipline or summary dismissal will depends on the facts of the case, said Lowe.

“It’s always going to be a contextual analysis,” he said. “You need to be able to establish that what you think happened actually happened.”

He pointed to the Ontario Court of Appeal’s 2022 ruling in Render v. ThyssenKrupp Elevator (Canada) Limited where an operations manager with three decades on the job was fired after he crouched down in front of a female colleague, with his face close to her breasts, before slapping her on the buttocks.

“Behavour like that, where we’ve gone from harassment into actual physical contact, I think that's going to give strong weight towards a dismissal for just cause,” he said. “Really egregious instances of sexual harassment, racial harassment — where it’s obvious and blatant — may substantiate a for cause dismissal.”

The GO Transit case is still ongoing. The Divisional Court ordered a new arbitration hearing, with a different arbitrator, to look into the decision to fire the workers.

“While the arbitrator’s decision was fatally flawed… there were numerous other issues addressed by the arbitrator, including the appropriateness of the termination penalties imposed by the employer,” the Court said. “These issues should be reassessed in light of this Court’s reasons.”

Enter some text...