Employers and the Off-duty Conduct of Employees

This article was originally published in Law360 Canada.

A recent decision of the Court of Appeal for Ontario offers important guidance to employers around off-duty conduct and the obligation to investigate incidents of harassment. The decision, Metrolinx v Amalgamated Transit Union, Local 1587, 2025 ONCA 415 confirms that employers have an obligation to investigate potential incidents of harassment, even in the absence of a formal complaint. It also confirms that employers can discipline for off-duty conduct where that conduct has an impact on the workplace.

Background

Metrolinx terminated five unionized employees for sexual harassment. The employees were part of an online WhatsApp group, in which they made negative, derogatory, and sexist comments about other employees in texts on their private cellphones. One of the employees mentioned in the texts (known as Ms. A) reported to a supervisor that the texts alleged she had performed sexual favours for career advancement. Ms. A, however, did not make a formal complaint.

The union grieved the terminations. The labour arbitrator agreed with the union and ordered the employees to be reinstated to their positions. The employer sought judicial review, and the Divisional Court concluded that the arbitrator’s decision was unreasonable. The union then obtained leave to appeal to the Court of Appeal.

Court of Appeal Decision

The Court of Appeal agreed with the Divisional Court and overturned the arbitrator’s award. The Court of Appeal noted that there is a statutory obligation under the Occupational Health and Safety Act to investigate both incidents and complaints of harassment. In other words, there is an obligation to investigate an incident of harassment even if there is no formal complaint.

Metrolinx’s harassment policy referred to a complaint as the trigger for initiating the investigation process. However, the Court of Appeal noted that a policy cannot limit an employer’s obligations under legislation such as the Occupational Health and Safety Act.

The Court of Appeal was also critical of the arbitrator’s conclusion that, based on Ms. A’s decision to forgo making a formal complaint, the harassment did not have an impact on the workplace. The Court reinforced that arbitrators cannot rely on rejected myths or stereotypes about the expected conduct of victims of sexual assault/harassment. There was evidence before the arbitrator to conclude that the WhatsApp messages had an impact that was manifest in the workplace, including that some of the texts came to Ms. A’s attention while she was at work, making her upset and emotional, and that they were forwarded to other employees. The arbitrator’s conclusion otherwise was not consistent with the facts and did not withstand scrutiny.

Key Takeaways

1.      Employers Can Discipline for Off-Duty Conduct

The Court of Appeal confirmed existing arbitral case law that allows employers to discipline employees for off-duty conduct where the misconduct manifests in the workplace — that is, it has an impact in the workplace by seriously prejudicing or injuring the employer’s reputation or legitimate business interest.

2.      A Formal Complaint is Not Required to Investigate

The Court of Appeal clearly explained that the Occupational Health and Safety Act requires an employer to investigate both complaints and incidents of harassment. Even if a workplace policy states that a complaint starts the investigation process, this does not relieve an employer of its obligation to comply with the Occupational Health and Safety Act.