HomeMy WebLinkAbout2021-0716.Juteram et al.23-07-20 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2021-0716; 2021-0717;2021-0718;
2021-0719; 2021-0720
Union# G-049-21-BOE; G-045-21-BOW;G-044-21-BOW;
G-048-21-BOW; G-046-21-BOW
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Juteram et al) Union
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The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE Gordon F. Luborsky Arbitrator
FOR THE UNION Simon Blackstone and Emily Home
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Thomas Agnew and Samantha Sutherland
Hicks Morley Hamilton Stewart Storie LLP
Counsel
HEARING May 5, 2022, November 30, 2022,
January 23, 2023, February 8, 2023,
May 1, 2023, and June 5, 2023
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Decision
I. General Overview of the Dispute
[1] The Union claims the Employer unjustly discharged five GO Transit bus drivers
identified as, Mark Pelley (“Pelly”, GSB#2021-0716), John Edson (“Edson”, GSB#2021-
0717), Snjesko Radovic (“Radovic”, GSB#2021-0718), Paul Sousa (“Sousa”, GSB#2021-
0719), and Justin Juteram (“Juteram”, GSB#2021-0720) (individually “Grievor” and
collectively “Grievors”). Each had approximately 7 to 10 years of service with no discipline
relied upon at the time of their dismissals.
[2] In or about September 2019 (or some earlier unknown date(s) going back in one
case to March 28, 2019), the Grievors with possibly other unidentified individuals were
engaged in intermittent on-line text communications through what is referred to as the
“WhatsApp” app via their personal cellphones. The Grievors assert they did not
communicate on-line at the workplace or during working hours, and there is no evidence
to the contrary.
[3] The parties acknowledge the “WhatsApp” app is an encrypted social media
platform that is private to the specific members of the “chat group” that they establish and
control access to. Unlike “Facebook”, “Twitter” or some other social platforms, the
communications in WhatsApp are not available to anyone outside the approved chat
group, nor to the public generally. Consequently, all Grievors believed and intended that
when they posted comments on WhatsApp through their personal cellphones, their
communications were private to the members of their group, which included all the
Grievors in this case and possibly an unknown number of unidentified individuals.
[4] In the course of the intermittent discussions within the chat group, some or all the
Grievors referred to current or past female employees as having obtained employment
advantages in return for sexual favours to certain male supervisors often crudely
expressed as giving a “blow job”, “sucking cock”, working “on her knees to get a job”,
“sleeping around”, etc., (or responding approvingly of such remarks by others) and at
least one Grievor referred to or repeated someone else’s claim that a former male
executive member of the Employer’s management was a “back-stabbing dick”, along with
other like comments. In another post, one of the Grievors repeated what he claimed to
be the “rumour” of a female Union executive member caught “sucking dick” of another
Union executive at a Las Vegas hotel conference.
[5] Following the Employer’s investigation that, for reasons described below didn’t
begin until April 15, 2020 (i.e., some seven months after the initial report of alleged
wrongdoing), extending until April 27, 2021 (i.e., one further year later), in the course of
which the Employer demanded that the Grievors open their personal cellphone records
to the Employer’s scrutiny from which it obtained the information relied upon in issuing
discipline, all five Grievors were summarily terminated in accordance with the Employer’s
“zero tolerance” for sexual harassment under its “Workplace Harassment and
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Discrimination (WHD) Prevention Policy” on April 30, 2021 (in the case of Juteram, Edson
and Radovic) and on May 3, 2021 (for Pelley and Sousa).
[6] They have each filed a timely grievance challenging their dismissals as unjust,
seeking as remedy: (1) A declaration of the contravention of the collective agreement;
(2) an order that each Grievor be reinstated effective immediately; (3) an order that the
Grievors be made whole, including compensation for any and all losses suffered, and
non-economic losses; (4) an order that the discipline be nullified; and (5) any other
remedy that the Union may advise and/or an arbitrator may deem appropriate.
[7] One of the issues in the present case is whether such personal cellphone
communications via an encrypted social media app to and within a supposed closed
group of participant employees while off-duty (and possibly others) that was not
accessible to the general public, insulated the Grievors from discipline by the Employer
for inappropriate electronic comments that if made in a public forum or in the workplace
and/or during working hours, might damage the Employer’s reputation and/or constitute
a form of sexual harassment negatively impacting employees in the workplace.
[8] Alternatively, the nature and context of the specific comments disseminated
intermittently through their personal cellphones within the chat group concerning current
and former female employees, and one male past member of executive management,
coupled with the more than 19-month delay in investigating and issuing discipline, gives
rise to the question of whether the Grievors were engaged in workplace sexual
harassment or harassment contrary to the Employer’s own policy where (with one
exception of an employee who did not complain and refused to cooperate with the
investigation), there is no evidence that any of the subjects of the group commentary
knew about them, nor demonstration of a nexus between the objectionable comments
and the creation of a hostile work environment impacting their employment.
[9] In the further alternative, there is an issue of whether the investigative process
engaged by the Employer was unreasonably intrusive into the Grievors’ personal
cellphone communications and otherwise invalid because of the Employer’s failure to
follow the detailed substantive and/or procedural requirements of its own WHD
Prevention Policy updated just prior to the renewal of the collective agreement between
the parties, that was promulgated under the employment contract’s “Management Rights”
prerogative to “make and apply reasonable rules and regulations”, which was purportedly
violated in this case.
[10] It is not disputed that the Employer may discipline employees for off-duty
misconduct that undermines the Employer’s public reputation and/or renders employees
unable to fulfill their employment obligations in the hostile work environment created by
the inappropriate behaviour and/or leads to the reluctance or inability of other employees
to work with the offending employees, thus undercutting the Employer’s ability to
efficiently manage the enterprise.
[11] Nonetheless, accepting the comments made by all or some of the Grievors were
unseemly, unbecoming and unacceptable (if not forms of sexual harassment when
viewed in isolation), do the circumstances in the present case support the Employer’s
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claim it had just cause to summarily terminate the employment relationship of five,
otherwise discipline-free bus drivers with some 7 to 10 years of service, possibly up to
two years after the offensive comment(s) were made over their personal cellphones
outside of work that each intended and believed to be private communications through
the WhatsApp encrypted social network app not accessible to the general public?
[12] The parties agreed at the outset of the hearing into these grievances that I was
properly appointed as arbitrator and had jurisdiction to determine their dispute.
II. Decision
[13] Although the Grievors’ cellphone text messages were shameful and reflected
poorly on their character, they occurred outside the workplace on the Grievors’ own time,
using their personal cellphones through an on-line medium they reasonably believed and
intended to be private to the Grievors and its other participants not available to the public
generally, in circumstances beyond the Employer’s authority.
[14] The fact that the Grievors participated in such on-line discussions using
objectionable language through a social media platform inaccessible outside of their chat
group, did not give the Employer license to intrude on their private electronic
conversations without express contractual, statutory or judicial authority to do so,
particularly where the use of various social media as a mode of communication between
colleagues and friends via personal cellphone is so pervasive that it is very much the
contemporary norm.
[15] Within the laws of defamation not in issue here, the Grievors did not give up to the
Employer their fundamental right as Canadian citizens or residents to privacy and
freedom of speech on their own time with their colleagues and friends, while utilizing their
personal cellphones over a private electronic network inaccessible to the public generally,
even if their comments are reprehensible and clash with the Employer’s policies or social
norms of decency that may constitute forms of sexual harassment if made at work during
working hours or in a public forum having a demonstrated hostile impact on employees
in the workplace.
[16] Of no less significance, the Employer failed to follow its own detailed substantive
and procedural safeguards under its WHD Prevention Policy, undercutting the validity of
its findings of sexual harassment “through social media where it is established that the
impact of the harassment and/or discrimination is being manifested within the workplace”1
which, among other fundamental stipulations, promised a “fair and impartial investigation”
that is incompatible with assigning the investigative function to one of the Employer’s own
Employee Relations Managers, while the Employer also purported to be the only
“Complainant” in the mandated investigative procedure under the Policy (since the
potentially impacted employee refused to file a complaint or cooperate with the
investigation), thus creating an obvious conflict of interest between the representative of
1 Per the description of harassment and discrimination outside of the workplace through social media under the
Employer’s WHD Prevention Policy, discussed below.
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the purported Complainant (i.e., the Employer) and the designated “fair and impartial”
Investigator (i.e., also the Employer), who were one and the same person in this case.
[17] Consequently while condemning their language, I must conclude all five Grievors
were terminated without just cause in violation of the collective agreement (including the
WHD Prevention Policy promulgated thereunder) and are entitled to reinstatement to their
former positions with no loss of seniority during their absence along with compensation
to make them whole for all monetary shortfalls and benefits to the date of reinstatement,
plus any associated and/or non-economic damages arising out of the discharge, remitted
to the parties for determination which I remain seized to resolve if necessary, while
ordering the removal of the discipline from each of their employment files. My detailed
reasons are as follows.
III. Agreed Statement of Facts
[18] The parties argued their conflicting positions on the merits of the grievances from
an extensive “Agreed Statement of Facts” with supporting documents (referenced in the
“Facts”) filed on consent.2
[19] In reproducing these “Agreed Facts” below, and at the request of the parties, the
names of the individuals referred to by the Grievors during their various WhatsApp chats
have been anonymized to respect their privacy:
1. This arbitration concerns Grievances G-049-21-BOE, G-045-21-BOW, G-044-21-BOW, G-048-
21-BOW and G-046-21-BOW, which are attached at Tab 1.
2. Metrolinx is the regional transportation operating GO Transit, the UP Express and PRESTO.
GO Transit has been in operation since 1967. It is now the regional public transit service for the
Greater Toronto and Hamilton Areas, operating numerous train lines and bus routes which carry
70 million riders.
3. ATU, Local 1587 is the bargaining agent for the bargaining unit which included the Grievors;
Justin Juteram, Mark Pelley, John Edson, Snjesko Radovic, and Paul Sousa.
4. The Employer and the Union are parties to a collective agreement. A copy of the collective
agreement that was in force at the time of the grievances were filed is attached at Tab 2.
Metrolinx’s Workplace Harassment and Discrimination Policies and Training
5. Metrolinx has a Workplace Harassment and Discrimination Prevention Policy (the “Policy”) in
place since March 2006. At all material times, the Policy has stated that it does “not override
other statutory or collectively bargained rights.”
6. In 2016, all Metrolinx bus drivers, including the Grievors, were required to complete a training
module titled, “BidWeb, Corporate Security Awareness, Customer Service.” This module
included, inter alia, diversity awareness and education training. A copy of the facilitator’s guide
to the module is attached at Tab 3.
2 In total, I was presented with some 700 pages of documentation in the form of agreed facts and exhibits (including
a video), all of which I carefully reviewed along with the parties’ comprehensive submissions and extensive book of
authorities amounting to several hundreds’ additional pages.
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7. As part of onboarding training, new employees are informed of Metrolinx’s Workplace
Harassment and Discrimination Prevention Program, including, inter alia, Metrolink’s zero
tolerance stance on harassment and discrimination, and the roles and responsibilities of all
workplace parties in preventing workplace harassment and discrimination. A copy of the memo
sent to new Metrolinx employees is attached at Tab 4.
8. In May 2018, Metrolinx updated the Policy to formally outline Metrolinx’s renewed commitment
to creating a safe and inclusive workplace, free of harassment and discrimination. The Policy
applies to all employees of Metrolinx. The updated policy included, inter alia,
(a) Definitions of workplace harassment and discrimination;
(b) A framework for the prevention of workplace harassment and discrimination;
(c) Direction through training and education so that all individuals within the scope of the policy
are aware of their rights and responsibilities with regard to workplace harassment and
discrimination;
(d) A process for reporting, investigating, and responding to complaints of harassment and/or
discrimination in an effective and timely manner; and
(e) Metrolinx’s zero tolerance approach to harassment and discrimination of any kind.
A copy of the updated Policy is attached at Tab 5.
9. The updated Policy was available for Metrolinx employees to access at any time on MyLinx,
which is an internal website accessible by all Metrolinx employees. A screenshot of a MyLinx
page from December 2018 is attached at Tab 6.
10. On October 25, 2018, Fiona Gardner, Director, Strategic Talent Management, sent an email to
SMT and Directors, outlining the rollout of Metrolinx’s awareness campaign for the Workplace
Harassment and Discrimination Prevention Program. Ms. Gardner confirmed in the email that
Human Resources was committed to reaching all employees with the awareness campaign by
using a number of channels, including Divisional Town Halls. A copy of the email is attached at
Tab 7.
11. The Divisional Town Halls mentioned in Ms. Gardner’s October 25, 2018 email included
presentations by Human Resources to Metrolinx employees in each Division on the topic of
Workplace Harassment and Discrimination Prevention. Ms. Gardner attached to the October
25, 2018 email the following:
(a) A copy of speaking notes that were to be read by SMT or the Director at the beginning of
each Town Hall to introduce the topic (Tab 8)
(b) A copy of the PowerPoint presentation to be presented by Human Resources (Tab 9)
(c) A copy of a video that was embedded within the PowerPoint presentation (Tab 10)
(d) A copy of the Policy current to May 2018, which included FAQs and Key Messages at the
end (Tab 11)
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12. At the Divisional Town Hall meetings, Metrolinx informed its employees of the updated Policy
and covered the topics outlined in the materials that were attached to Ms. Gardner’s October
25, 2018 email.
13. On November 21, 2019, Metrolinx management sent an email to all Metrolinx employees
advising them that Metrolinx had updated its Code of Business Conduct and Ethical Behaviour
for Employees (the “Code of Conduct”) to reflect the current business environment and
expectations. In the email, Metrolinx noted that one of the changes to the Code of Conduct was
to add an “explicit expectation that employee behaviours will be consistent with a diverse and
inclusive workplace.” Attached to the email was the updated Code of Conduct. A copy of the
November 21, 2019 email is attached at Tab 12. A copy of the Code of Conduct attached to the
email is found at Tab 13.
14. On November 20, 2019, all Metrolinx employees received an email which informed them of their
requirement to complete a mandatory Workplace Harassment, Discrimination, and Violence
online training module. A copy of the email is attached at Tab 14.
15. The Workplace Harassment, Discrimination, and Violence module provided training on, inter
alia:
(a) Metrolinx’s policies and programs on workplace harassment, discrimination and violence
prevention;
(b) Defining the scope of harassment, discrimination and violence;
(c) The roles and responsibilities of employees, managers, and HR in preventing harassment,
discrimination and violence; and
(d) Information on how to report incidents of workplace harassment, discrimination and
violence.
16. The training module also reiterated Metrolinx’s zero tolerance stance on all forms of harassment,
discrimination and violence. The Grievors underwent the training in 2019. A copy of the
mandatory Workplace Harassment, Discrimination, and Violence online training module is
attached at Tab 15.
17. In 2019, the Grievors were also required to complete a Bus Driver recurring training Module.
This module provided education on how to develop practices against unconscious bias. The
training module is attached at Tab 16.
18. Metrolinx updated its Policy once again in September 2020 in order to more clearly reflect its
commitment to fostering a safe and inclusive workplace for all employees. A copy of the updated
Policy is attached at Tab 17.
19. In 2020, Metrolinx provided all employees with a document called “Workplace Harassment &
Discrimination Prevention – We all have a role to play.” That document outlined referred to
mandatory training regarding workplace harassment that had to be completed in 2020. A copy
of the document is attached at Tab 18.
20. The Grievors each undertook mandatory workplace harassment, discrimination, and violence
training in 2020. A copy of a report confirming the date and time of the training is attached at
Tab 19.
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21. On December 4, 2020, Phil Vester, President and CEO of Metrolinx (“Vester”), delivered a
message to all Metrolinx employees which outlined the steps that Metrolinx has taken to foster
a safe and inclusive workplace. In this message, Mr. Vester reiterated that any act of
harassment or discrimination will not be tolerated by Metrolinx. A copy of this message is
attached at Tab 20.
22. On March 15, 2021, Vester sent a letter to all Metrolinx employees which reinforced Metrolinx’s
zero tolerance stance on workplace harassment and discrimination and outlined the steps that
had been taken by Metrolinx to educate staff. A copy of this letter is attached at Tab 21.
Events Leading to Metrolinx’s Investigation
23. In April 2020, Melody Waldock, HR Business Partner, was conducting an investigation into an
issue unrelated to these grievances. As part of that investigation, Waldock interviewed Korey
Gordon (“Gordon”), Assistant Manager Bus Operations on April 9, 2020. During that interview:
(a) Gordon stated that “Ms. A”, Bus Driver West had told him that she had received screenshots
of WhatsApp messages that contained negative comments about her that had been written
by Juteram; and
(b) Gordon stated that he had seen a screenshot on Ms. A’s phone of a message from Juteram
and that based on his recollection it said: “She’s sleeping with her boss to get ahead” and
a comment to the effect of “she got on her knees to perform a job.”
24. Ms. A had initially reported these allegations to Gordon in 2019. However, Ms. A did not file a
formal complaint at that time because she did not want the matter investigated.
25. Once Waldock became aware of these allegations against Juteram in April 2020, she reported
them to Metrolinx’s Workplace Harassment and Discrimination Prevention Department for
investigation.
26. Metrolinx commenced an investigation in response to the information brought forth by Waldock,
arising from her interview with Gordon.
27. The investigation was conducted by Jen Castillo, Employee Labour Relations Manager
(“Castillo”). At the time the complaint came to the Workplace Harassment and Discrimination
Prevention department, Castillo was in the role of Acting Manager, Workplace Harassment and
Discrimination Prevention. At the time of the investigation, Castillo had over 14 years of
experience in Human Resources, in various positions and had been a Metrolinx employee for
approximately 4.5 years. A copy of Castillo’s CV is attached at Tab 22.
28. During the course of the investigation, Castillo became aware of additional allegations of
inappropriate comments allegedly made by other Metrolinx employees in a WhatsApp group
chat. As a result, the investigation was expanded to include six additional respondents.
29. The respondents to the investigation consisted of the following Metrolinx employees:
i. Justin Juteram, Bus Driver West (“Juteram”)
ii. John Edson, Bus Driver West (“Edson”)
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iii. Mark Pelley, Bus Driver East (“Pelley”)
iv. Osama Alrusheidat, Bus Driver West (“Alrusheidat”)
v. Patrick Missen, Bus Driver West (“Missen”)
vi. Paul Sousa, Bus Driver West (“Sousa”)
vii. Snjesko Radovic, Bus Driver West (“Radovic”)
30. Alrusheidat and Missen received no discipline.
The Investigation
31. Throughout the course of the investigation, Castillo conducted interviews with each of the six
respondents, the complainant 3 Ms. A., and the following witnesses:
(a) Korey Gordon, Assistant Manager Bus Operations
(b) Richard Allen, Supervisor Bus Operations
(c) Kristine Lamb, Supervisor Bus Operations
32. In investigating the allegations, Castillo also relied upon screenshots of messages that were
sent in the WhatsApp group chat. These screenshots were provided to Castillo by Juteram on
June 19 – 20, 2020. Copies of the messages Juteram provided to Castillo are attached at Tab
23.
33. The investigation was completed on December 19, 2020.
34. After the investigation concluded, Castillo produced the investigation report attached at Tab 24.
35. After the investigation concluded, Castillo also produced the summary report of the investigation,
dated March 10, 2021, attached at Tab 25.
“Ms. A”
36. On April 23, 2020, Castillo conducted an interview of Ms. A. A copy of the notes taken by Castillo
of her interview with Ms. A on this date is attached at Tab 26.
37. Ms. A was in a temporary acting supervisor position in September 2019 for a multiple month
period. During that period, Ms. A was required to shadow various senior supervisors as part of
the acting supervisor duties.
38. During a night shift in September 2019, Ms. A shadowed Gordon out of the Hamilton GO station.
Near the end of that same shift, Ms. A and Gordon returned together to the Streetsville Garage
at approximately 4:00 a.m. Ms. A saw approximately three to four drivers at the Streetsville
3 As the parties clarified in their oral representations, and their Agreed Facts confirm at paragraphs 24, 43 and 44, Ms.
A never filed a complaint of sexual harassment under the Employer’s “Workplace Harassment and Discrimination
Prevention Policy” and refused to participate in the Employer’s investigation. Thus, the Employer acknowledged that
any reference to a “Complainant” under the Agreed Facts was to the Employer alone.
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Garage when she returned with Gordon. She could not recall their names with the exception of
Edson, who she recalled seeing.
39. Ms. A stated that she could not recall the exact comments, but recalled hearing someone say
something to the effect of “they look cozy together,” in reference to her and Gordon returning to
the Streetsville Garage at the end of the night shift in September 2019.
40. At some time after the above incident, someone sent screenshots of WhatsApp messages to
Ms. A’s personal cellphone. Despite repeated requests by Metrolinx, Ms. A refused to disclose
who sent her the screenshots. Ms. A recalls the WhatsApp messages had an identifier on them
indicating they were sent by “Justin Juteram.”
41. When Castillo asked Ms. A during the interview on April 23, 2020, what the messages said
exactly, Ms. A said she could not remember all the messages she read but she recalled one
message attributed to Juteram said something to the effect of “Ms. A went down on her knees
to get the acting supervisor job.”
42. Ms. A deleted the messages from her cellphone shortly after receiving them as she did not think
it was appropriate to have them on her personal cellphone.
43. The messages upset Ms. A at the time she reviewed them. She recalls getting emotional at
work when she first saw the messages. She spoke to Gordon about the messages around the
time she received them. Ms. A stated she did not want to file a formal complaint as she did not
want the other drivers to know she complained. Ms. A also stated in July 2020 that she did not
want to “take this further”, referring to the investigation, as it is “really stressing me out and
distracting me to do my job knowing I didn’t brought up (sic) the complaint nor I want to do
anything about it” (sic). A copy of the emails between Castillo and Ms. A are attached at Tab 27.
44. Castillo sent Ms. A emails on June 18, 2020 and July 2, 2020 requesting, among other things,
that Ms. A provide a copy of the messages she had reviewed that Juteram had written, or
information about the person who had provided them to her. Ms. A responded on July 2, 2020
and July 6, 2020 stating she did not want to participate in the investigation any further.
Juteram
45. At the time of the investigation Juteram was employed as a Bus Driver, West and had
approximately 6 years and 11 months of service with Metrolinx. Metrolinx relies on no discipline
history in support of its termination of Juteram.
46. Castillo had a brief telephone call with Juteram on June 15, 2020 to notify him of the
investigation. Castillo sent Juteram a follow-up email the same day, a copy of which is attached
at Tab 28.
47. Castillo interviewed Juteram on the following dates:
(a) June 19, 2020;
(b) July 3, 2020;
(c) December 9, 2020; and
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(d) March 9, 2021
48. A copy of the notes taken by Castillo during the above interviews with Juteram are attached at
Tab 29. At the end of each interview, Castillo read her notes back to Juteram and asked hm if
they were accurate. Castillo incorporated into the notes any changes requested by Juteram and
the final version of the notes is found at Tab 29.
49. During the June 19, 2020 interview, Juteram searched WhatsApp messages on his phone in the
presence of Castillo and confirmed he had access to the WhatsApp group chat at that time. He
also stated he was involved in another WhatsApp group chat and confirmed he searched that
as well. At the end of the interview, Castillo asked Juteram to provide additional WhatsApp
messages.
50. Juteram sent Castillo a screenshot of two WhatsApp messages by text message from his
personal cellphone on June 19, 2020 after the interview. He advised Castillo there were no
other related messages. Copies of the messages that Juteram provided on June 19, 2020 are
the two messages found at the top of page 6 at Tab 30.
51. On June 20, 2020, Castillo asked Juteram to send further screenshots of messages related to
the investigation. Juteram sent Castillo additional screenshots but initially removed the names
of the individuals making the comments and cropped the images so some replies to certain
comments were missing. Castillo asked Juteram to resend the messages with the missing
information. Juteram resent the messages.
52. On June 22, 2020 Juteram sent Castillo some additional messages; some were time and date
stamped and some were not.
53. A copy of all the messages sent by Juteram to Castillo related to the investigation are found at
Tab 30. Metrolinx organized the messages into categories by search term.
54. During the July 3, 2020 interview, Castillo asked Juteram about the messages he provided.
During that interview, Castillo asked Juteram to provide additional messages from the WhatsApp
chat following that meeting. Juteram agreed to provide the requested messages.
55. Following the July 3, 2020 interview, Castillo followed up with Juteram via text message and/or
email on July 6, July 8 and July 20, 2020 regarding the additional messages Castillo had
requested Juteram to provide. Juteram did not respond to Castillo’s inquiries. A copy of the
email sent to Juteram on July 6, 2020 is attached at Tab 31.
56. On August 2, 2020, Castillo followed up with Juteram again via email requesting the messages
again and notified Juteram that he was not meeting his obligations under the Policy to cooperate
in the investigation. Castillo followed up with a union representative regarding the missing
messages. Juteram responded to Castillo on August 2, 2020 and requested a telephone call
with a union representative present. A telephone call between Castillo, Juteram and a union
representative took place on August 5, 2020. During that call, Juteram stated that he had been
experiencing personal problems and that is why he did not respond to Castillo’s earlier requests
for the additional messages. When Castillo asked why Juteram had still not provided the
additional messages, Juteram stated more than once that he had “no more information to
provide” and that he could no longer provide the messages because he had changed phones.
Copies of the relevant emails are attached at Tab 32.
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57. A copy of a timeline prepared by Castillo outlining Castillo’s requests to Juteram for additional
messages, and Juteram’s response, is attached at Tab 33.
58. On December 9, 2020, Castillo interviewed Juteram and asked him questions about the
allegations that he had made comments about Ms. A in the workplace in addition to the
WhatsApp chat information alleging Juteram had made comments about Ms. A in the workplace
had been brought forward by Gordon during a May 26, 2020 interview with Castillo. A copy of
the notes reflecting what Gordon told Castillo in the interview are attached at Tab 34.
59. On March 9, 2021, Castillo met with Juteram and a union representative. The purpose of the
meeting was to discuss with Juteram the fact that he had not provided the additional WhatsApp
messages that had been requested. A copy of the interview notes taken by Castillo from this
meeting are attached at Tab 35. Castillo summarized her notes at the end of the meeting and
asked Juteram if he had any corrections to make. Juteram did not ask for any changes to be
made to the notes.
60. Juteram wishes to extend an apology to Ms. A and to Metrolinx for the remarks attributed to him.
While they were conducted in a conversation that Juteram considered private and were never
intended to be shared with any person other than the participants in the chat, he recognizes that
they were inappropriate and is sorry for having made them.
Edson
61. Castillo conducted an investigative interview with Edson on August 20, 2020. A copy of the
notes taken by Castillo in the interview with Edson are attached at Tab 36. At the end of the
interview, (sic) At the end of each interview, Castillo read her notes back to Edson and asked
him if they were accurate. Castillo incorporated into the notes any changes requested by Edson
and the final version of the notes is found at Tab 36.
62. At the time of the investigation, Edson was employed as a Bus Driver, West and had 8 years
and 10 months of service with Metrolinx. Metrolinx relies on no discipline history in support of
its termination of Edson.
63. Metrolinx alleged that Edson made inappropriate comments regarding current and former
employees of Metrolinx in a WhatsApp group chat. These comments included:
(a) “maybe “Ms. B.” tried to suck her cock too!” allegedly a reference to “Ms. B”., a former
Metrolinx employee (referred to as “allegation 3a” in the Investigation Report);
(b) “I heard “C”4 walked in on “Ms. D” sucking “Mr. E’s” dick” referring to rumors involving
current employees (“C”, “Ms. D” and “Mr. E,” all of whom were Union executives) (referred
to as “allegation 3b” in the Investigation Report);
(c) In addition, Metrolinx alleged that Edson sent two additional inappropriate messages, which
were referred to as allegation 3(c) and 3(d) of the Investigation Report. Edson
acknowledged sending those messages. Metrolinx found that these messages were
inappropriate but did not arise to the level of harassment and were not relied on by Metrolinx
for discipline purposes.
4 It is not clear on the Agreed Facts whether “C” is male or female.
- 13 -
64. At the time the comments were made, Ms. B no longer worked for Metrolinx. She was a Senior
Manager, Bus Operations, from 2013 – 2019.
65. Screenshots of the messages associated with allegation 3a are found at pages 8 and 25 of the
Investigation Report. In the investigative interview, Edson stated that he could not recall making
the comment outlined in allegation 3a and that it “doesn’t ring a bell”. Edson also agreed that it
was this badge number associated with the comment.
66. A screenshot of the message associated with allegation 3b is found at page 26 of the
Investigation Report. Edson acknowledged during the investigative interview that he sent the
message associated with allegation 3b. He further stated that he was just repeating remarks
other people had made and that the rumors associated with “C”, “Ms. D,” and “Mr. E,” were
“talked around everywhere”. At all times relevant to this grievance, Edson was an elected Local
1587 Union Steward.
67. Edson wishes to extend an apology to Ms. B., C, Mr. E, Ms. D, and to Metrolinx for the remarks
attributed to him. While they were conducted in a conversation that Edson considered private
and were never intended to be shared with any person other than the participants in the chat,
he recognizes that they were inappropriate and is sorry for having made them.
Pelley
68. Castillo conducted an investigative interview with Pelley on August 18, 2020. A copy of notes
taken by Castillo during the interview with Pelley are attached at Tab 37. At the end of the
interview, Castillo read her notes back to Pelley and asked him if they were accurate. Castillo
incorporated into the notes any changes requested by Pelley and the final version of the notes
is found at Tab 37.
69. At the time of the investigation, Pelley was employed as a Bus Driver, East, and had 7 years
and 11 months of service with Metrolinx. Metrolinx relies on no discipline history in support of
its termination of Pelley.
70. Metrolinx alleged that Pelley participated in a WhatsApp group chat where he made the following
inappropriate comments regarding ex-employees of Metrolinx:
(a) “U suck ur way to the top like Ms. B but then ran into another woman who wasn’t into her
[with laughing emojis]” (referred to as “allegation 4a” in the Investigation Report); and
(b) Saying “a guy said…he is a backstabbing dick [with 3 laughing emojis] in response to a
posted photo of Mr. F (former Metrolinx Senior Management Official) (referred to as “allegation 4b” in the Investigation Report).
71. At the time the comments were made, Ms. B. no longer worked for Metrolinx. She was the
Senior Manager, Bus Operations, from 2013 – 2019.
72. A screenshot of allegation 4a is found at pages 8 and 28 of the Investigation Report. During
the investigation interview, Pelley stated he did not remember sending the message. Pelley
suggested that he was not referring to Ms. B, but rather another [person with the same first
name] who he had worked with approximately 10 years ago at a different employer before joining
Metrolinx.
- 14 -
73. Screenshots of the messages associated with allegation 4b are found at page 8 and 29 of the
Investigation Report. During the investigative interview, Pelley acknowledged that he sent the
message associated with allegation 4b. Pelley stated that he remembered a passenger making
this comment about Mr. F and he was just reiterating what he had heard.
74. Pelley wishes to extend an apology to Ms. B, Mr. F and to Metrolinx for the remarks attributed
to him. While they were conducted in a conversation that Pelley considered private and were
never intended to be shared with any person other than the participants in the chat, he
recognizes that they were inappropriate and is sorry for having made them.
Sousa
75. Castillo conducted an investigative interview with Sousa on September 21, 2020. A copy of
notes taken by Castillo during the interview with Sousa are attached at Tab 38. At the end of
the interview, Castillo read her notes back to Sousa and asked him if they were accurate.
Castillo incorporated into the notes any changes requested by Sousa and the final version of
the notes is found at Tab 38.
76. At the time of the investigation, Sousa was employed as a Bus Driver, West and had 9 years
and 5 months of service with Metrolinx.
77. Metrolinx alleged that Sousa made inappropriate comments regarding current employees of
Metrolinx in a WhatsApp group chat. These comments included:
(a) Saying “10-4” in response to “… “Ms. G don’t know anything except being on her knees”
(referred to as “allegation 7a” in the Investigation Report);
(b) Saying “anything is possible when you suck cock” while discussing Ms. G’s salary (referred
to as “allegation 7b” in the Investigation Report);
(c) Saying “but they both sleep around” referring to Ms. H and another driver (referred to as
“allegation 7c” in the Investigation Report); and
(d) Metrolinx alleged that Sousa sent a fourth inappropriate message, referred to as allegation
7d in the Investigation Report. Metrolinx found that the message was inappropriate but did
not amount to harassment and were (sic) not relied on by Metrolinx for discipline purposes.
78. Screenshots of the messages associated with allegation 7a are found at pages 12 and 38 of the
Report. During the investigative interview, Sousa stated he does not recall making the comment
in question or the conversation and he cannot speculate on anything he does not remember.
79. Screenshots of the messages associated with allegation 7b are found at pages 11 and 39 of the
Report. During the investigative interview, Sousa stated that he did not remember making the
comment, but acknowledged that looking at it now, it is a pretty inappropriate thing to say.
80. A screenshot of the message associated with allegation 7c is found at page 40 of the
Investigation Report. During the investigative interview, Sousa stated that he remembered
making the comment. Sousa stated that it was “public knowledge” at the time that the drivers in
question were sleeping around and everyone was talking about it.
81. In addition to his acknowledgement in the interview process, Sousa wishes to extend an apology
to Ms. G, Ms. H and to Metrolinx for the remarks attributed to him. While they were conducted
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in a conversation that Sousa considered private and were never intended to be shared with any
person other than the participants in the chat, he recognizes that they were inappropriate and is
sorry for having made them.
Radovic
82. Castillo conducted an investigative interview with Radovic on September 21, 2020. A copy of
notes taken by Castillo during the interview with Radovic are attached at Tab 39. At the end of
the interview, Castillo read her notes back to Radovic and asked him if they were accurate.
Castillo incorporated into the notes any changes requested by Radovic and the final version of
the notes is found at Tab 39.
83. At the time of the investigation, Radovic was employed as a Bus Driver, West and had 9 years
and 5 months of service with Metrolinx.
84. Metrolinx alleged that Radovic made inappropriate comments regarding current employees of
Metrolinx in a WhatsApp group chat. These comments included:
(a) Saying “Ms. G don’t know anything except being on her knees” in reference to a driver
named Ms. G (referred to as “allegation 8c” in the Investigation Report); and
(b) Engaging in discussions with other group members about a rumor that C, a Union Rep,
walked in on Ms. D, a Union Rep, giving Mr. E a blow job (referred to as “allegation 8d” in
the Investigation Report).
(c) Metrolinx also alleged that Radovic sent two additional inappropriate messages (referred to
as “allegation 8a” and “allegation 8b” in the Investigation Report). Radovic
acknowledged sending these messages. Metrolinx found that these additional messages
were inappropriate but did not amount to harassment and were not relied on by Metrolinx
for discipline purposes.
85. Screenshots of allegation 8c are found at pages 12 and 44 of the Investigation Report. Radovic
stated during the investigative interview that he had sent the message associated with allegation
8c. Radovic stated that there were “all kinds of stories” going around at the time with Ms. G.
Radovic stated that he made the comment because of the stories he had heard about her, and
he was repeating what he had heard. Radovic stated that there were so many stories about Ms.
G at the time and that he did not understand “how do you [Ms. G] make so much money without
moving a muscle out of the garage”.
86. A screenshot of allegation 8d is found at page 46 of the Investigation Report. Radovic stated
during the investigative interview that there was a rumour going around at the time regarding
the contents of allegation 8d. Radovic stated that he did not remember who told him about this
rumor. Radovic stated that it was just a story that he heard, and he had commented on it. When
asked whether he thought it was appropriate to repeat this rumor, Radovic stated, “it was just a
story…” and “if I can remember a story and I can repeat it I will.”
87. During the investigative interview, Castillo asked Radovic why the WhatsApp group chat had a
lot of comments by various group members about acts which are sexual in nature or offensive
in some way. Radovic made comments to the effect that his comments were “guy talk”, “we are
just being guys”, and “you can make comments and its guy talk”. Radovic also commented that
he understood the WhatsApp group to be a private conversation with his friends. He
differentiated between a WhatsApp chat, which is only available to invited members, and a public
- 16 -
online post such as on Facebook or Twitter. Radovic also said that he would not make such
comments in the physical workplace.
88. Multiple times during the investigative interview, Radovic offered to apologize in person to
anyone who was offended by his comments in the WhatsApp chat. Accordingly, Radovic wishes
to extend an apology to Ms. G, C, Mr. E, Ms. D and to Metrolinx for the remarks attributed to
him. While they were conducted in a conversation that Radovic considered private and were
never intended to be shared with any person other than the participants in the chat, he
recognizes that they were inappropriate and is sorry for having made them.
Outcome of Investigation
89. On April 27, 2021, each of the Grievors received a letter from Metrolinx advising them of the
outcome of the investigation.
90. Juteram was advised that, on the balance of probabilities, he had engaged in sexual
harassment; and that he failed to provide additional WhatsApp messages contrary to Metrolinx’
s Workplace Harassment and Discrimination Policy. A copy of the letter from Metrolinx to
Juteram is attached at Tab 40, and it reads in part:
Upon reviewing all evidence collected during the course of the investigation, it was
found that, on the balance of probabilities, you did engage in sexual harassment
against Ms. A contrary to Metrolinx’s WHDP Policy. In particular, the following
conclusions were made.
• You made inappropriate comments of a sexual nature regarding Ms. A and her
acting assignment as a Supervisor in a WhatsApp group chat and in the workplace.
Specifically, you made the following comments regarding Ms. A and her acting
assignment that were something to the effect of:
a) “She went down on her knees and gave a blow job to get the job”
b) “She slept with the boss to get the job”
c) Referring to Ms. A sleeping with another driver
• Despite multiple requests, you failed to provide additional WhatsApp messages
which were the subject of an ongoing investigation, in violation of the WHDP
Policy.
91. Edson was advised that, on a balance of probabilities, he had engaged in sexual harassment,
contrary to Metrolinx’ s Workplace Harassment and Discrimination Policy. A copy of the letter
sent from Metrolinx to Edson is attached at Tab 41, and it reads in part:
Upon reviewing all evidence collected during the course of the investigation, it was found
that, on the balance of probabilities, you did engage in sexual harassment contrary to
Metrolinx’s Workplace Harassment and Discrimination Prevention Policy In particular, the
following conclusions were made.
• You made inappropriate comments, some of which were of a sexual nature and
referred to rumors about current and former Metrolinx employees in a WhatsApp
group chat. Specifically, it was found that you made the following comments:
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a) “maybe Ms. B tried to suck her c*ck too!!” referring to “Ms. B”
b) “I heard C walked in on Ms. D sucking Mr. E’s d*ck” referring to rumors
involving these employees.
• You also made inappropriate comments, some of which were of a sexual nature
to other participants in the WhatsApp group chat. These comments, although
inappropriate, did not rise to the level of harassment.
92. Pelley was advised that, on the balance of probabilities, he had engaged in harassment and
sexual harassment, contrary to Metrolinx’s Workplace Harassment and Discrimination Policy. A
copy of the letter sent from Metrolinx to Pelley is attached at Tab 42, and it reads in part:
Upon reviewing all evidence collected during the course of the investigation, it was found
that, on the balance of probabilities, you did engage in harassment and sexual
harassment contrary to Metrolinx’s Workplace Harassment and Discrimination
Prevention Policy. In particular, the following conclusions were made:
• You made inappropriate comments, some of which were of a sexual nature and
referred to rumors about current and former Metrolinx employees in a WhatsApp
group chat. Specifically, it was found that you made the following comments:
a) “U suck ur way to the top like Ms. B but then ran into another woman who
wasn’t into her [with laughing emoji]”
b) Saying “a guy said […] he is a backstabbing d*ck [with 3 laughing emoji’s”] in
response to a posted photo of “Mr. F”.
93. Sousa was advised that, on the balance of probabilities, he had engaged in harassment and
sexual harassment, contrary to Metrolinx’s Workplace Harassment and Discrimination Policy. A
copy of the letter sent from Metrolinx to Sousa is attached at Tab 43, and it reads in part:
Upon reviewing all evidence collected during the course of the investigation, it was found
that, on the balance of probabilities, you did engage in harassment and sexual harassment
contrary to Metrolinx’s WHD Policy. In particular, the following conclusions were made:
• You contributed to and made inappropriate comments, some of which were of a
sexual nature, including referring to rumors, about current Metrolinx employees in
a WhatsApp group chat. Specifically, it was found that you made the following
comments:
a) Saying “10-4” in response to: “…Ms. G don’t know anything except being on
her knees”
b) Saying “anything is possible when you suck c*ck” while discussing Ms. G’s
salary
c) Saying “but they both sleep around” referring to ‘Ms. H” and another Driver
- 18 -
• You also made inappropriate comments to other participants in the WhatsApp
group chat. These comments, although inappropriate, did not rise to the level of
harassment.
94. Radovic was advised that, on the balance of probabilities, he had engaged in harassment and
sexual harassment, contrary to Metrolinx’s Workplace Harassment and Discrimination Policy. A
copy of the letter sent from Metrolinx to Radovic is attached at Tab 44, and it reads in part:
Upon reviewing all evidence collected during the course of the investigation, it was found
that, on the balance of probabilities, you did engage in harassment and sexual harassment
contrary to Metrolinx’s Workplace Harassment and discrimination Prevention Policy. In
particular, the following conclusions were made:
• You contributed to and made inappropriate comments, some of which were of a
sexual nature, including referring to rumors, about current Metrolinx employees in
a WhatsApp group chat. Specifically, it was found that you made the following
comments:
a) Saying “Ms. G don’t know anything except being on her knees” in reference to
a driver called Ms. G
b) Engaging in discussions with other members about a rumor that C walked in
on Ms. D giving Mr. E a blow job
• You also made inappropriate comments to other participants in the WhatsApp
group chat. These comments, although inappropriate, did not rise to the level of
harassment
• It was not found you were making fun of Ms. A’s name
95. A copy of the Workplace Harassment and Discrimination Policy that was in force at the time of
the termination is attached at Tab 45.
96. As a result of the findings of the investigation, each of the Grievors were (sic) terminated for
cause:
(a) Juteram was terminated on April 30, 2021. A copy of his termination letter is attached at
Tab 46.
(b) Edson was terminated on April 30, 2021. A copy of his termination letter is attached at Tab 47.
(c) Pelley was terminated on May 3, 2021. A copy of his termination letter is attached at Tab 48.
(d) Sousa was terminated on May 3, 2021. A copy of his termination letter is attached at Tab
49.
(e) Radovic was terminated on April 30, 2021. A copy of his termination letter is attached at
Tab 50.
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IV. Additional Relevant Documents
[20] In addition to the foregoing Agreed Statement of Facts, the parties filed or referred
to many supporting documents (incorporated as attachments to various paragraphs in the
narrative) including an extensive Investigation Report and transcripts of witnesses and
Grievor interviews which supplemented and/or provided important context to the Agreed
Statement of Facts, as well as contractual and legislative provisions on consent, the
relevant portions of which may be summarized as follows:
(a) Workplace Harassment and Discrimination (WHD) Prevention Policy
[21] The Employer has a well-publicized and regularly updated, “Workplace
Harassment and Discrimination (WHD) Prevention Policy” (hereinafter “WHD Prevention
Policy”), prohibiting workplace and sexual harassment on which the Grievors received
appropriate training. Among its stipulations, a three-page summary of the WHD
Prevention Policy issued to employees during training proclaims a “ZERO tolerance
stance on harassment and discrimination” (capitalization and bolding in original), warning
that the Employer will “take action to prevent and address all forms of harassment and
discrimination, including but not limited to discrimination towards Indigenous Peoples,
Persons with Disabilities, Visible Minorities (including anti-Black racism) and Women.”
The WHD Prevention Policy is expressly applicable to: “All Metrolinx workers”, “Any
person on Metrolinx property or conducting business with Metrolinx”, and “All Metrolinx
workplaces” that includes, “Harassment and discrimination which occurs outside the
workplace but which is having a negative impact within the workplace (e.g. social
media or work group chats)” (bolding in original).
[22] “Sexual harassment” is further defined in the WHD Prevention Policy summary as,
“(i) engaging in a course of vexatious comment or conduct against a worker in a workplace
because of sex, sexual orientation, gender identity or gender expression, where the
course of comment or conduct is known or ought reasonably to be known to be
unwelcome, or (ii) making a sexual solicitation or advance where the person making the
solicitation or advance is in a position to confer, grant or deny a benefit or advancement
to the worker and the person knows or ought reasonably to know that the solicitation or
advance is unwelcome.” Examples of sexual harassment are identified as, “jokes about
sexual orientation [and] sexualized comments about others.” And among their
enumerated responsibilities, the WHD Prevention Policy states that all employees are
obliged to “Cooperate in investigations”, while managers must, “Remain alert to WHD
incidents” and “Report WHD incidents to (Human Resources).”
[23] Finally, under the heading, “Sanctions”, the WHD Prevention Policy summary
provides that, “In line with our ZERO tolerance stance on harassment and discrimination,
violations of the WHD Policy will result in substantive sanctions up to and including
termination” (emphasis added).
[24] The Employer also filed on consent its official 13 – page WHD Prevention Policy,
formally catalogued within its “Corporate Human Resources Employees Relations”
Division as “HR-0203-02(P)”, created on March 8, 2008 and last updated on May 15,
- 20 -
2018 5 which was in effect as of the date of the grievances (hereinafter referred to as the
“official” policy). Of note, the Policy commits the Employer to take “every reasonable step
to”, among other things, “…identify and eliminate workplace harassment and
discrimination in a timely manner” (emphasis added). It “also covers harassment and
discrimination which occurs outside the workplace but which is having a negative
impact within the workplace” (emphasis added) as well as “harassment and
discrimination through social media where it is established that the impact of the
harassment and/or discrimination is being manifested within the workplace”
(emphasis added). And while recognizing that harassment may take many forms, it
expressly includes “offensive behaviour arising from the use of electronic media,
devices and systems” (emphasis added).
[25] The Policy expressly defines a “Complainant” as “The person, or persons,
making the complaint…”, and the “Respondent” as, “The person or persons who are
identified by the Complainant as the perpetrators of alleged wrongdoing…”
(emphasis added). It states that all employees shall among other things, “cooperate fully
in the investigation of complaints or incidents of workplace discrimination and/or
harassment”; and that managers will “promptly report all complaints or incidents of
workplace discrimination and/or harassment received to a Human Resources
representative”.
[26] And it mandates comprehensive “Complaint and Investigation Procedures”
including the requirement that: “An employee must file his or her complaint promptly
and without delay, i.e., as soon as reasonably possible, following the alleged
events(s) or incident(s) giving rise to the complaint” (emphasis added). Upon
receiving a complaint, it is reviewed by a “Consultant, in consultation with the
appropriate Manager(s)” (emphasis added) for the purpose of determining “the steps in
the investigation and the necessary arrangements to fulfill those steps,” which shall
include “an assessment as to whether the investigation may be conducted internally or
whether an external investigation should be retained.”
[27] Then, for each complaint, the Policy states that an investigator will be assigned
“to conduct a fair and impartial investigation” (emphasis added). While normally, “the
investigator will be a Metrolinx manager”, the Policy provides for the appointment of a
“Consultant” with the responsibility to “decide who will be assigned as the investigator”
and, “Depending individual circumstances, Metrolinx may retain a qualified, external
investigator to conduct the investigation of a complaint.” There is no express stipulation
in the WHD Prevention Policy suggesting that the Employer may be a “Complainant” in
its own right.
[28] Also, while the three-page WHD Prevention Policy summary states that, “In line
with our ZERO tolerance stance on harassment and discrimination, violations of the WHD
Prevention Policy will result in substantive sanctions up to and including termination,” the
official WHD Prevention Policy filed in these arbitration proceedings does not expressly
5 The last update of the WHD Prevention Policy prior to the Grievors’ dismissals was approximately three months
before the commencement date of the collective agreement between the parties dated June 2, 2018 to June 1, 2022,
under which the Grievors derive their contractual rights. The WHD Prevention Policy states later that the “Effective
Date” of the updated policy is “June 26, 2018”.
- 21 -
provide a “zero tolerance” penalty for any and all forms of workplace discrimination and/or
harassment (in the sense of “automatic termination” which is the way the Employer
applied the Policy in the present case).6 Instead, the official Policy permits a range of
non-disciplinary and disciplinary responses with the responsibility of Manager(s) “to
implement and/or enforce the corrective actions and other recommendations”
(identified in the Investigator’s report), with the further obligation to “monitor the
situation…to ensure that measures to stop the discrimination and/or harassment
have been effective” (emphasis added).
[29] These and other relevant provisions of the Employer’s official WHD Prevention
Policy in effect as of the date of the grievances (in contrast to its three-page summary
used for training purposes) are reproduced in context below:
POLICY STATEMENT
Metrolinx is committed to fostering and sustaining an inclusive, diverse, equitable and accessible
workplace that is free from harassment and discrimination. This policy upholds the legal framework
of the Ontario Human Rights Code and meets the requirements of the Ontario Occupational Health
and Safety Act. Metrolinx considers workplace harassment and discrimination unacceptable and
will not tolerate such behaviour.
Metrolinx will take every reasonable step to:
• cultivate and sustain a supportive work culture;
• prevent workplace harassment and discrimination and promote awareness of rights and
responsibilities;
• identify and eliminate workplace harassment and discrimination in a timely manner;
and
• improve and/or restore work environments and work relationships affected by incidents or
allegations of harassment and/or discrimination.
…
PURPOSE
This policy is intended to
• establish a framework for the prevention of workplace harassment and discrimination;
• provide direction including direction through training and education, so that all individuals
within the scope of the policy know their rights and responsibilities; and
• establish a process for reporting, investigating, and responding to complaints of
harassment and/or discrimination in an effective and efficient manner.
SCOPE AND APPLICATION
This policy applies to all employees of Metrolinx, as well as to members of the board of directors,
volunteers, co-op students, interns and apprentices (each deemed to be an employee for the
purpose of this policy). Contractors, consultants, customers and any other individuals conducting
business with Metrolinx are expected to adhere to this policy the course of their interactions with
Metrolinx employees.
6 My reasons for arriving at this conclusion are set out later in this Award.
- 22 -
…
This policy also covers harassment and discrimination which occurs outside the workplace
but which is having a negative impact within the workplace. Without limiting the generality
of the above, this policy covers harassment and discrimination through social media where
it is established that the impact of the harassment and/or discrimination is being manifested
within the workplace.
…
This policy does not override other statutory or collectively bargaining rights. Employees and former
employees, where applicable, may also:
• file a grievance in accordance with the applicable collective agreement;
• make an application to the Human Rights Tribunal of Ontario (“HRTO”); and/or
• engage the processes of the Occupational Health and Safety Act.
DEFINITIONS
Workplace Harassment
For purposes of this policy, “workplace harassment” means engaging in a course of vexatious
comment or conduct against an employee in a workplace that is known or ought reasonably to be
known to be unwelcome, including sexual harassment.
“Workplace sexual harassment” means (i) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity
or gender expression, where the course of comment or conduct is known or ought
reasonably to be known to be unwelcome, or (ii) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny
a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
Harassment does not need to be based on a prohibited ground of discrimination as defined in the
Human Rights Code. While harassment usually involves a course of conduct, depending on the
circumstances, a single serious incident of such behaviour may also constitute harassment.
Harassment may take many forms, and it may include, but is not limited to, the following:
1. behaviour that a reasonable person would consider to be insulting, bullying, humiliating,
malicious, degrading, unwelcome or otherwise offensive to an individual or group of individuals;
2. offensive behaviour arising from the use of electronic media devices and systems;
3. offensive or humiliating behaviour that is related to a person’s sex or gender, as well as
behaviour of a sexual nature that creates an intimidating, hostile work environment including
physical contact or requests for sexual favours, stalking, leering or that could be reasonably
thought to put sexual conditions on a person’s job or employment opportunities;
4. behaviour that causes work or service environment to be hostile and/or isolating for an individual
or group of individuals creating real or perceived inequities in the workplace, including but not
limited to sexually explicit material, insulting slurs or jokes, malicious gossip, pin ups, and
offensive cartoons; …
- 23 -
…
Complainant
The person, or persons, making the complaint are referred to as the Complainant(s).
Respondent
The person or persons who are identified by the Complainant as the perpetrators of alleged
wrongdoing, are referred to as the Respondent(s).
Investigator
For each complaint filed pursuant to this policy, an investigator will be assigned. The investigator
will be responsible for conducting a fair and impartial investigation of the complaint. The
investigator will normally be an employee of Metrolinx, but depending on individual circumstances,
Metrolinx may, in its discretion, retain a qualified, external investigator to conduct the investigation.
Manager
For this policy, the term “Manager” is used generically to identify all employees who have a
supervisory or managerial function or are otherwise in a position of authority with respect to other
employees.
ROLES AND RESPONSIBILITIES
…
All employees shall:
…
3. report immediately, all complaints or incidents of workplace harassment and/or discrimination
experienced, witnessed or to which he/she has knowledge of to:
• HR Services…
• HR Business Partner or Employee Relations Consultant;
• Alternatively, employees may report their concerns or complaints to Metrolinx’s third-
party service provider, Whistleblower Security Inc….
…
5. cooperate fully in the investigation of complaints or incidents of workplace
discrimination or incidents of workplace discrimination and/or harassment.
In addition, all Managers shall:
…
5. encourage employees to report complaints or incidents of workplace discrimination and/or
harassment in a timely manner.
…
8. promptly report all complaints or incidents of workplace discrimination and/or
harassment received to a Human Resources representative; …
…
- 24 -
COMPLAINT AND INVESTIGATION PROCEDURES
Initiation of a Complaint
The Workplace Discrimination and Harassment investigative process is initiated by a complaint in
writing filed by the Complainant with his or her immediate Manager, the next most senior level
if the Supervisor is the subject of the complaint, the Human Resources Business Partner or an
Employee Relations Consultant.
When a complaint is received by a Manager or Human Resources, the complainant will be forwarded
to an Employee Relations Consultant within 48 hours of receipt, normally through a scanned copy
of the original complaint. The original copy is to be sent by internal courier as soon as is practical.
Upon receiving the complaint either from the Manager or from the Complainant directly, the
Consultant will discuss the complaint with the relevant Manager(s) to determine whether or not
actions need to be taken to protect the Complainant from potential harm during the course of the
investigation.
…
Timeliness Concerning Receipt of Complaint
An employee must file his or her complaint promptly and without delay, i.e., as soon as
reasonably possible, following the alleged event(s) or incident (s) giving rise to the complaint.
A delay in filing a complaint may affect Metrolinx’s ability to conduct an effective investigation. For example, respondents and witnesses may have difficulty remembering the
alleged events due to the passage of time. However, despite any delays in the filing of a complaint,
Metrolinx will ensure that for each complaint, there will be an investigation that is appropriate to the
circumstances.
…
Review of Complaint
The investigation of a complaint will begin with a review conducted by the Consultant, in consultation
with the appropriate Manager(s). The general purpose of the review is to determine the steps in the
investigation and the necessary arrangements to fulfill those steps. This shall include an
assessment as to whether the investigation may be conducted internally or whether an external investigation should be retained.
Investigator
For each complaint, an investigator will be assigned to conduct a fair and impartial investigation.
Normally, the investigator will be a Metrolinx manager or a member of Human Resources. The
Consultant shall decide who will be assigned as the investigator. …
Depending on individual circumstances, Metrolinx may retain a qualified, external
investigator to conduct the investigation of a complaint. The approval of the Chief Human
Resources Officer or his/her designate is required before an external investigator is retained.
Investigative Process
The general process in an investigation is summarized below. For each individual complaint, it may
be necessary to change or revise to (sic) the process to ensure the investigation is appropriate to
the specific circumstances.
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a) Interviews and Obtaining evidence
• The Investigator will, as soon as practical, and normally within one week of the filing of
the complaint, meet with the Complainant to explain the investigation process, to clarify
the complaint and to obtain the Complainant’s evidence relevant to the complaint.
• The Investigator will then provide the Respondent with a summary of the Complainant’s
allegations prior to meeting with him or her. Where practical, the Respondent should
receive a minimum of three business days to review and reflect upon the allegations
before being interviewed with respect to the complaint.
• Once the Respondent has received three business days to review and consider the
material, the investigator will meet with the Respondent as soon as practical to explain
the investigation process and to obtain the Respondent’s evidence relevant to the
complaint.
…
b) Investigative Report
• An Investigative Report will be prepared, setting out the factual findings and conclusions of
the investigation, along with recommendations for next steps, including the corrective action to be taken if it was found that harassment, discrimination or any other
misconduct occurred.
• For clarity, the Investigative Report must indicate whether or not harassment or
discrimination occurred.
• Metrolinx will endeavour to have an Investigative Report completed within three months
of the date that the complaint was filed. However, depending on the complexity and specific
circumstances of an individual complaint/investigation a longer timeframe may be required.
If a longer timeframe is required, the parties will be notified and, where possible, they will be advised of the anticipated timeframe as to when they will be informed of the
results of the investigation.
c) Notifying Complainant and Respondent of the Results of the Investigation
• Human Resources and/or the appropriate Managers will meet separately with both parties to explain to them the results of the investigation and of any corrective action
that has been taken or that will be taken as a result of the investigation. For clarity, in
being informed of the results, both parties will be notified as to whether or not harassment
or discrimination occurred, as well as whether any other misconduct occurred.
• Both parties will also receive written notice of the above information.
Reconsideration
If either of the parties are not satisfied with the results, that party may, within 45 calendar days
of receiving written notice of the results of the investigation, request reconsideration by
submitting a written request to Human Resources. The request shall include specific reasons for the
request, such as possible errors or oversights on the part of the investigator, or identify relevant
information that had not previously been considered.
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…
Implementation of Recommendation
It is normally the responsibility of the Manager(s) to implement and/or enforce the corrective
actions and other recommendations, where applicable, identified in the investigative report.
The Manager(s) will monitor the situation and the continued well-being and behaviour of both parties
for a minimum of six month following resolution, and longer if necessary, to ensure that the
measures to stop the discrimination and/or harassment have been effective.
INVESTIGATIVE PRINCIPLES
Role of the Investigator
An investigator must act in a fair and impartial manner. A key part of the investigator’s role is to
interview the parties to a complaint, interview relevant witnesses, consider the evidence and make
findings of fact as to what did or did not occur. Those findings of fact, in turn, will allow for a
determination as to whether harassment and/or discrimination in the workplace occurred, as well
as whether or not any other misconduct or inappropriate behaviour occurred.
…
Responses
Responses to discrimination and harassment shall:
• be provided in a timely manner;
…
[Emphasis added]
(b) Contextual Information from Investigative Interviews and Notes
[30] The Agreed Statement of Facts also incorporates an extensive file of investigative
interviews conducted by the Investigator, Ms. Jean Castillo identified as the “Manager,
Workplace Harassment and Discrimination Prevention” (who was assigned to Human
Resources), along with her 60-page Investigative Report that was completed on
December 19, 2020 and is noted as “Received” on April 15, 2021. But the Investigator’s
conclusions were not released to the Grievors until April 27, 2021 (mere days before they
were each terminated with no opportunity to request “reconsideration” of any of the
findings or conclusions in accordance with the WHD Prevention Policy before they were
dismissed), which were filed on consent and selectively referred to by the parties during
argument.
[31] The notes of the Investigator’s interviews indicate the Grievors had the opportunity
to read and affirmed the accuracy of the Investigator’s notes (which the Union did not
dispute). It is therefore appropriate to refer to the following contextual observations
revealed by those notes and accompanying documentation in considering the parties’
subsequent submissions.
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(i) Genesis of the Investigation
[32] Except for Ms. A, the documentation confirms that none of the current or former
employees referred to by the Grievors during their various WhatsApp group chats over a
period of many months was interviewed or gave any statements to the Employer. Thus,
there is nothing in the Agreed Statement of Facts and/or investigative notes to suggest
that Ms. B, C, Ms. D, Mr. E, Mr. F, Ms. G and/or Ms. H knew they were mentioned by any
of the Grievors in the WhatsApp group chats relied upon by the Employer to support
discipline for the Grievors’ social media posts where, as stated in the WHD Prevention
Policy, “it is established that the impact of the harassment and/or discrimination is being
manifested within the workplace”, and/or whether the comments affected their
employment in any way, and in particular, whether they created a “hostile work
environment” for them.
[33] The investigation notes also show that except for the WhatsApp communications
written by Mr. Juteram that came to Ms. A’s attention on or about September 23, 2019,
the content of all the group chats relied upon by the Employer implicating the other
Grievors, specifically Messrs. Edson, Pelley, Sousa and Radovic, were derived solely
from screenshots of Mr. Juteram’s personal cellphone that he provided to the Investigator
in response to her demands for that information in the course of four in-person interviews
that occurred on June 19, 2020, July 3, 2020, August 5, 2020 and December 9, 2020 (the
earlier June 15, 2020 contact being by telephone only to notify Mr. Juteram of the
investigation). And even then, given that Ms. A had deleted the offensive communications
from her cellphone, the Investigator was not aware of the precise language used by Mr.
Juteram in September 2019 until he handed over those screenshots from his personal
cellphone in compliance with the Investigator’s demands.
[34] The Investigator effectively warned Mr. Juteram that his failure to provide the
demanded screenshots of the WhatsApp communications saved on his personal
cellphone making inappropriate comments of a sexual nature about current and former
employees, would be regarded as refusal to cooperate with the investigation contrary to
the WHD Prevention Policy, leaving him open to additional discipline. There is no
evidence of a source of those screenshots of the offensive text messages that was
accessible to the public generally, outside of the individuals included within the WhatsApp
chat group via their personal cellphones. Except for the seven employees identified from
the screenshots of Mr. Juteram’s cellphone as participating in various group chats making
the offensive comments (two of whom were not disciplined) over a period going as far
back as March 28, 2019, plus an unknown individual referred to as “Maverick”, there was
no evidence identifying any other participants in the WhatsApp chats, whether employees
or not. Consequently, there is in fact no evidence before me of any wider distribution of
the offensive WhatsApp messages beyond those eight identified individuals.
[35] In describing the “Documentary Evidence” that the Investigator relied upon for
determining whether the Grievors committed acts of sexual harassment contrary to the
Employer’s WHD Prevention Policy, which was a reference to the screenshots of their
electronic conversations obtained from Mr. Juteram’s cellphone, the Investigator wrote at
p. 48 in her Investigative Report:
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There are lots of messages provided at the start of the investigation by Mr. Juteram
but some of the conversations are incomplete because Juteram did not provide the
additional messages as requested. Since most parties stated that they could not
recall the alleged comments or conversation, the messages that were provided by
Juteram; as well as witness evidence from the Supervisors was heavily relied upon.
[Emphasis added]
(ii) The Investigative Process
[36] The foregoing determination that “most parties stated they could not recall the
alleged comments or conversation” revealed from the screenshots provided by Mr.
Juteram, reflects the significant passage of time in processing the “Complaint”, which was
contrary to the requirements of the WHD Prevention Policy (i.e., by not proceeding “in a
timely manner”).7
[37] The Investigator explains the delay in completing her investigation (which,
calculated from the initial report of wrongdoing in September 2019 until the Grievors were
informed of the outcome of the investigation amounted to some 19 months), at p. 2 of her
Report, with the statement that, “The investigation was delayed due to expansion of
scope, workload delays in interviewing parties (either because they did not want to
participate further or were unavailable to interview), and due to a delay in waiting to
receive documentation from Mr. Juteram which was later never provided”. However, the
Report goes on to note that, “The investigation was completed on December 19, 2020”,
and no explanation is provided in the Investigation Report or supporting documentation,
why there was a further delay until April 27, 2021 before the Grievors were notified of the
results of the investigation, followed within days by the Grievors’ terminations for alleged
just cause, without any practical opportunity for the Grievors to request reconsideration
of the findings of the Investigator permitted under the WHD Prevention Policy.
[38] That delay is to be considered in the context of the Investigator’s statement at p.
51 in the same Investigation Report under the heading “Findings of Fact”, where the
Investigator writes that Ms. A. told at least three supervisors on or about September 23,
2019, or soon thereafter, that someone had sent her a screenshot of the offensive
messages written by Mr. Juteram which Ms. A deleted from her cellphone. Ms. A refused
to disclose the name of the person who sent her the screenshots, that she identified as
“a friend” and she made it clear she wouldn’t file a complaint or cooperate in an
investigation into the matter. The three supervisors who were initially informed by Ms. A
of the offensive screenshots were named as: Mr. Korey Gordon, Assistant Manager, Bus
Operations, Ms. Kristine Lam, Supervisor Bus Operations, and Mr. Richard Allen,
7 Under the WHD Prevention Policy the matter should have been reported from the Manager to Human Resources
within 48 hours of the complaint. Interviews should have been conducted within one week of receipt of the complaint
(after providing three days’ notice of the details of the complaint to the responding parties). And the Employer had
committed to “endeavour” to complete the investigation of alleged workplace discrimination and/or sexual harassment
within three months of the date of the complaint. In fact, the investigation was not completed until December 19,
2020, with the results not shared with the Grievors until April 27 2021.
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Supervisor, Bus Operations. Mr. Gordon described the comments in the screenshot that
he read as “vulgar”.
[39] Paragraphs 36 – 44 of the Agreed Statement of Facts set out the evidence of Ms.
A, which is sparce. They indicate that Ms. A was interviewed by the Investigator on April
23, 2020 (i.e., seven months after the September 23, 2019 incident), by which time Ms.
A had removed the offensive screenshots from her cellphone. She could not recall the
“exact comments” except for remembering she heard someone say “something to the
effect of ‘they look cozy together’, in reference to her and Gordon returning to the
Streetsville Garage at the end of the night shift September 2019” (which is not a reference
to the screenshots at all). When specifically pressed by the Investigator about the
contents of the screenshots, para. 41 of the Agreed Facts states that, “she recalled one
message attributed to Juteram said something to the effect of ‘[Ms. A] went down on her
knees to get the acting supervisor job’. At para. 43 of the Agreed Facts, Ms. A is quoted
as telling the Investigator that she “recalls getting emotional at work when she first saw
the messages”, but then decided she “did not want to take this further” referring to the
investigation because, as Ms. A stated in a July 2, 2020 e-mail communication at 8:16
p.m. to the Investigator, which was filed by parties:
“This is really stressing me out and distracting me to do my job knowing I didn’t brought (sic) up the
complaint nor I want to do anything about it. I want this to end soon when am trying to do my job but
I can’t” (sic).
[40] It is clear from the Agreed Facts and supporting documents, that the source of Ms.
A’s stress was the investigation itself. Nothing in the Agreed Facts indicates Ms. A’s
stress had anything to do with the isolated screenshots received on September 23, 2019,
nor did she tell anyone that the screenshots had caused her to feel she was working in a
negative or hostile environment (which, as discussed later, is a central element in the
offence of sexual harassment). And, by the time Ms. A was first interviewed some seven
months after the “incident” of receiving the inappropriate screenshots, there was no
evidence of any ongoing distress or repetition of her receipt of any screenshots from her
unidentified “friend” or anyone else.
[41] The documentation filed shows that the Investigator responded to Ms. A by e-mail
at 9:54 p.m. on July 2, 2020 by telling her, “I cannot force you to do anything you do not
want to; and I certainly do not want to cause any stress but I have to do what I can to
investigate this issue now that it has been brought to my attention.” The Investigator was
intent on pursuing the matter regardless of the absence of a Complainant as defined by
the WHD Prevention Policy 8, and notwithstanding any “stress” it might be causing for Ms.
A.
[42] Although Mr. Gordon encouraged Ms. A to report her receipt of the offensive
screenshot messages to Human Resources, he (and the other supervisors) respected
Ms. A’s request not to do so. The Investigative Report indicates that Mr. Gordon made
8 As I shall discuss later in these Reasons, I rejected the Employer’s claim that the WHD Prevention Policy
contemplates the ability of the Employer to substitute itself as a “Complainant” under the Policy, when no employee
comes forward, and then have one of its own Human Resources officials who is required under the Policy to conduct
a “fair and impartial” investigation function as the investigator, effectively placing Ms. Castillo in the position of
being both representative of the Complainant and Investigator in the same matter.
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this decision after bringing the matter to the attention of his immediate supervisor,
identified in the Investigative Report as “David Wipperman”, who was the previous
Manager of Bus Operations. Hence, from the investigative notes filed by the parties, it is
clear that at least two senior managers and two supervisors with knowledge of the
September 2019 WhatsApp group chats referring to Ms. A didn’t forward the information
to Human Resources within the “prompt” timelines mandated by the WHD Prevention
Policy and no “complaint” under the WHD Prevention Policy was ever filed by Ms. A
(which requires the complaint to be in writing). This was in spite of the fact that the
Investigator’s notes indicate that the supervisors knew that Ms. A had been provided with
the offensive screenshots on or about September 23, 2019 or soon thereafter (the precise
date of their knowledge being unclear in those notes or the Investigation Report).
[43] Consequently, as indicated by the Agreed Facts, the responsible Human
Resources officials were not aware of Ms. A’s receipt of the offensive September 2019
screenshots until April 9, 2020 (i.e., approximately 7 months later), when Mr. Gordon
mentioned the incident to a Human Resources official during an investigation into a
different matter. And even then, the first brief interview by telephone of Mr. Juteram didn’t
occur until June 15, 2020, followed by a more substantive interview on June 19, 2020
(i.e., some 9 months post-incident) with the other Grievors not interviewed until August
18, and 20, 2020 (in the cases of Pelley and Edson, respectively), and on September 21,
2020 (for Sousa and Radovic), which was one year after the offensive September 2019
text messages were initially brought to the attention of the Employer’s on-site
management team in the persons of Gordon, Wipperman, Lam and Allen.
[44] Once it was made clear to the Investigator that Ms. A would not file a complaint
under the WHD Prevention Policy and would not assist with the investigation, the
Investigator’s July 2, 2020 e-mail to Ms. A indicates the Investigator decided to pursue
the matter regardless, with the documentation subsequently identifying “Metrolinx” as the
Complainant, although there is no reference to any formal written complaint ever filed by
Metrolinx with a clear identification of the Respondents and particulars of their alleged
wrongdoing in accordance with the WHD Prevention Policy. It is also apparent from the
interview notes that the Investigator repeatedly demanded that Mr. Juteram disclose
screenshots of all the WhatsApp conversations containing similarly “vulgar” language on
Mr. Juteram’s personal cellphone, thereby expanding the inquiry into a search for
evidence of inappropriate comments by every member of the chat group, instead of
responding to specific allegations of misconduct.
[45] This inquiry into Mr. Juteram’s personal cellphone messages was directed by the
Investigator with the inference of discipline for not cooperating with her demands, which
ultimately implicated the other bus drivers found to have used (or allegedly approved the
use) of some of these words in the WhatsApp group chats leading to the termination of
the four additional GO Transit bus drivers, identified as Messrs. Edson, Pelley, Sousa
and Radovic, determined by the Investigator to have sexually harassed current and
former employees based on her expanded inquiry. In the notes of her first interview with
Mr. Juteram on June 19, 2020, the Investigator wrote she told Mr. Juteram that:
As a Metrolinx employee you have a duty to be honest and share all relevant information
and documents with me. Do not destroy any relevant emails, texts, photos, or notes and
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at the end of the interview I will give you an opportunity to share any relevant documents
and propose witnesses.
[46] While Mr. Juteram was later disciplined, in part for failing to cooperate in the
investigation of suspected sexual harassment by not supplying a complete record of the
WhatsApp conversations held in his personal cellphone sought by the Investigator, the
parties confirmed that Ms. A did not receive discipline for her refusal to participate in the
investigation or to provide the information requested, including the name of the person
who sent her the screenshots of Mr. Juteram’s comments in the WhatsApp chat referring
to Ms. A. (It was conceded by the parties that the person who sent the screenshots with
the offensive content to Ms. A was not Mr. Juteram.) This was notwithstanding Ms. A’s
obligations as an employee governed by the WHD Prevention Policy to “report
immediately, all complaints or incidents of workplace harassment and/or discrimination
experienced” and to “cooperate fully in the investigation of complaints or incidents of
workplace discrimination or incidents of workplace discrimination and/or harassment.”
[47] There was also no evidence to suggest that the managers, Gordon and
Wipperman, and senior supervisors, Lam and Allen, faced any consequences for their
failure to promptly report their knowledge of the alleged sexual harassment of Ms. A in or
about September 2019, contrary to the WHD Prevention Policy.
(iii) Additional Findings of Fact
[48] In analyzing the screenshots received from Mr. Juteram’s cellphone, the
Investigator conducted a “Keyword Search”, filed in these proceedings, that focused on
the use of the following words by members of the chat group: “Blow Job” (4 instances),
Ms. A (8 references), “On Her Knees” (1 example), “Suck Cock” (6 instances) and “Suck
Dick” (9 events). (She also checked for the words, “Slept with the Boss”, “Sleeping with
the Boss” and “Fucked the Boss” which didn’t render any “hits”.)
[49] These offensive words obtained from screenshots of Ms. Juteram’s cellphone,
which are “snippets” of conversations only over a period of time extending as far back as
March 28, 2019, were later relied upon by the Investigator. They formed the basis of the
Investigator’s expansion of her inquiry to include the other employees who were identified
by those screenshots as having participated in the chat group (having made inappropriate
comments that were never forwarded outside of the group). However, on inspection they
reveal little, if any, of the context to what were many intermittent WhatsApp conversations
held in the chat group over an extended period, that in some cases go back more than
two years before the conclusion of the investigation and notification to the Grievors of its
result. In some cases, the inappropriate comment that seems damning in isolation, takes
on a different meaning or potential meaning when viewed in the context of a wider
conversation.
[50] For example (and only one of many), in discussing the WhatsApp chat comments
in response to a photograph of Mr. F, who was a former senior executive member of the
Employer’s management, the Investigation Report indicates that during an interview held
on August 18, 2020, Mr. Pelley explained that “a passenger told him Mr. F was “a
backstabbing dick”” and then another employee named Patrick Missen, who was also
subjected to investigation because he posted the picture of Mr. F to the chat group on
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October 3, 2019, was recorded as asking, “how do you get high up in a company without
back stabbing?” to which Mr. Missen added that Mr. F “looks like he kills kids for fun”.
[51] Like the other Grievors, Mr. Pelley claimed to have no recollection of the specific
comment given its brevity and passage of time, which the Investigator determined was
“not credible” without further explanation. When Mr. Missen was questioned about that
WhatsApp message, which the Investigator’s Report indicates did not occur until August
24, 2020, the Investigator wrote at p. 35 of her Report that he also claimed “since this
incident occurred almost a year ago [that] he couldn’t recall…but believes that it was
made in some kind of joking manner”. The Investigator then concluded that Mr. Missen
made an “inappropriate comment” which did not amount to sexual harassment justifying
any discipline, without explaining why his participation in the group chat arising out of a
picture that he posted of Mr. F didn’t result in the same conclusion for uttering similar
language used by Mr. Pelley which the Inspector determined was sexual harassment
contrary to the Employer’s WHD Prevention Policy. The only notable distinction (although
not mentioned by the Investigator) was that Mr. Pelley used the word “dick” in
characterizing Mr. F’s claimed “back-stabbing” behaviour. In the context of the entire
conversation, the Investigator didn’t consider the possibility that the word “dick” might not
be a sexual reference. In labelling Mr. Pelley’s use of that word as a form of sexual
harassment, the Investigator did not seem to consider Employer’s burden of proof in such
matters, particularly where a word like “dick” in isolation, might be legitimately interpreted
in different ways.
[52] In the case of Mr. Sousa, the Investigator finds at p. 11 of her Report from the
screenshots revealed by Mr. Juteram, that during a WhatsApp discussion on March 28,
2019 over the salaries of employees revealed by the 2018 Sunshine List (i.e., that
catalogs the names and income of Ontario public employees receiving $100,000 or more
per year), an individual identified as “Maverick” posted a notice that Ms. G had received
an annual salary of $131,000. (As an aside, it is noteworthy that the only evidence before
me identifying the names and/or number of people who were part of the impugned
WhatsApp chat group, were the five Grievors, plus Messrs. Missen and Alrusheidat who
were investigated for their on-line comments but not disciplined, and the one unknown
person calling himself “Maverick”, for a total of eight people.)9
[53] Referring to the Sunshine List post, Mr. Osama Alrusheidat asked how this was
possible, to which Mr. Sousa was found to have said, “Anything is possible when you
such cock” and in reply, Mr. Alrusheidat wrote, “Lol true”. Both Messrs. Alrusheidat and
Sousa maintained they had no specific memory of that brief WhatsApp exchange which
occurred more than one year before they were interviewed about the matter on August
17, 2020 and September 21, 2020, respectively (and more than two years prior to Mr.
Sousa’s termination). The Investigator did not consider Sousa to be credible (without
elaborating on the reasons for that finding or giving any consideration to the significant
passage of time) and his comment was held to be an instance of sexual harassment
9 Employer counsel argued that since none of the Grievors knew the precise number and identity of the members of
the chat group, that I should accept the possibility of its being much larger than the relatively small number of
individuals specifically investigated and mentioned by the Investigator. I rejected that submission as it would require
that I speculate on an element of proof required from the Employer if it wished to argue that the dissemination of the
inappropriate language was so wide as to be indistinguishable from a public dissemination.
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justifying discipline. However, Mr. Alrusheidat was merely found to have uttered
inappropriate language in the form of “trash talk” or “joking banter” among friends outside
of the workplace which did not amount to sexual harassment, in the Investigator’s opinion,
and thus he did not receive discipline for that.
[54] Yet Mr. Sousa was disciplined when he responded “10-4” that the Investigator
interpreted as indicating Mr. Sousa’s approval of a sexually demeaning text by Mr.
Radovic during another undated WhatsApp discussion that, “Ms. G don’t know anything
except being on her knees”. There was no explanation by the Investigator why Mr.
Alrusheitdat’s comment, “Lol true” was not disciplinable, while the words “10-4” by Mr.
Sousa in response to the same or similar words was disciplinable as a form of sexual
harassment via his personal cellphone within the WhatsApp network to a closed group of
participants. Mr. Sousa’s explanation that his words, “10-4”, were merely intended to
acknowledge Mr. Radovic’s comment, was not accepted by the Investigator as “credible”
and thus formed part of the basis for his ultimate termination. The Investigator interpreted
“10-4” as connoting his approval or agreement.
[55] Like the other Grievors, Mr. Radovic had no memory of the specific comments
reflected in the screenshots retrieved from Mr. Juteram’s personal cellphone, which had
occurred at least one year before Mr. Radovic’s interview by the Investigator on
September 21, 2020, who was deemed not to be credible as a consequence (again, with
little to no explanation or the basis for the Investigator’s conclusions respecting
credibility). To the extent he had any recollection of the reason he used the offensive
words in that brief exchange, Mr. Radovic suggested (as did others) that he believed he
was merely repeating “rumours” he heard concerning conduct of the targeted individuals,
or was participating in “guy talk” with his friends only outside of the workplace through the
WhatsApp social media network, with no intention that his words would be made known
to the people being discussed, which was not considered legitimate by the Investigator
(while “trash-talk” and “joking banter” that was labelled “inappropriate” did not warrant
discipline for another employee).
[56] Nevertheless at the conclusion of her “Findings of Fact”, the Investigator
acknowledged at p. 54 of her Report that, “For the most part, all Respondents [Juteram,
Edson, Pelley, Sousa and Radovic] believed that since WhatsApp is a private group chat
and is not public in the same way that Facebook or Twitter are, they saw little to no
concern with the types of comments they made in the group chat with some members
feeling as though their privacy had been breached because some of the messages were
shared.”
(iv) Outcome of the Investigation
[57] However, the Investigator never addresses the Grievors’ claims that their privacy
was violated by the Employer intruding into their private group chat via their personal
cellphones, which was not accessible to the general public. Instead, having arrived at
her findings of fact (summarized in the foregoing Agreed Statement of Facts and
Investigation Report), the Investigator then engages in an analysis of the “Application of
Policy” to the facts.
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[58] In determining that the Grievors had committed acts of sexual harassment in
violation of the Employer’s WHD Prevention Policy, the Investigator concluded in her
Report that the words used in each case exhibited “a course of vexatious comment
against a worker (or former worker) within the scope of the workplace and the
respondents ought reasonably to have known that these comments would be
unwelcome”, which was sufficient from the Investigator’s understanding to establish
sexual harassment in the workplace.
[59] There was no finding and/or discussion by the Investigator in her Report of the
requirement under the “Scope and Application” section of the WHD Prevention Policy,
that in order to satisfy the definition of sexual harassment where there are allegations of
harassment and discrimination through off-duty social media texts, “it is established that
the impact of the harassment and/or discrimination is being manifested within the
workplace” (emphasis added).
[60] Rather, with the exception of Ms. A who refused to file a complaint or cooperate in
the investigative process, there was no finding by the Investigator suggesting that any of
the individuals identified as Ms. B, C, Ms. D, Mr. E, Mr. F, Ms. G and/or Ms. H in the
foregoing narrative of facts ever knew that their names had been mentioned in the private
group chat, and that their employment had been affected in any way.
[61] Nevertheless, each Grievor was advised by letter dated April 27, 2021 from the
Investigator that he had been found to have engaged in sexual harassment, followed
mere days later with letters of termination for cause signed by Mr. Paul Maglietta, Director,
Bus Operations, dated April 30, 2021 for Messrs. Juteram, Edson and Radovic, and on
May 3, 2021 for Messrs. Pelley and Sousa.
[62] In administering discipline, there was no evidence suggesting that Mr. Maglietta
(or the applicable decision-making authority) gave any consideration to the Grievors’ 7 to
10 years of service and/or clear disciplinary records and/or whether an inappropriate
comment intended to be private was an isolated event in an otherwise acceptable
employment history, before settling on termination as the just penalty in each case. This
was notwithstanding the wording in the Employer’s three-page summary of its WHD
Prevention Policy, recounted above, which states that, “In line with our ZERO tolerance
stance on harassment and discrimination, violations of the WHD Policy will result in
substantive sanctions up to and including termination” (emphasis added). Nor was
there any evidence to show that the Employer’s final decision-maker gave any
consideration to the range of potential sanctions, outside of termination, suggested by the
official WHD Prevention Policy itself, which doesn’t use the words, “zero tolerance” while
stating that the Manager(s) are normally responsible for ensuring compliance with the
“corrective actions and other recommendations” to redress the discrimination and/or
harassment.
[63] Instead, it is apparent the Employer blindly followed its announced “zero tolerance”
mantra without perspective, resulting in the automatic dismissal of every Grievor deemed
to have committed the offence of sexual harassment to any degree.
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(c) Relevant Contractual Provisions
[64] Article 6.1 of the collective agreement in effect from June 2, 2018 to June 1, 2022,
under which the parties derive their respective rights, provides as follows:
ARTICLE 6 – MANAGEMENT RIGHTS
6.1 Except as otherwise abridged by specific provisions in this agreement, the Union
acknowledges that the Employer shall be entitled to exercise all the usual rights and functions of
management, which rights include, but are not limited to, the right to establish and maintain cost
reduction methods and techniques,, to schedule and direct the work force, maintain order, discipline
and efficiency, hire, retire, classify, reclassify, direct, promote, demote, discipline and discharge
employees (provided that a claim that an employee with seniority has been disciplined or discharged
without just cause may be subject of a grievance and dealt with as provided for in this agreement)
and to increase and decrease the work force, suspend or cease operations, set the hours of operation
and assign same and the various duties to be performed, make and apply reasonable rules and regulations to be observed by employees, determine the number and location of facilities, the
methods of operation, the schedule of operation, the kinds and location of machines, tools and
equipment to be used; provided nothing herein shall restrict the rights of the parties pursuant to the
Crown Employees Collective Bargaining Act, as amended 1993.
[Emphasis added]
(d) Relevant Statutory Provisions
[65] The following provisions of the Ontario Human Rights Code, R.S.O. 1990, c. H.19
(“HRC”) and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (‘OHSA”) were
also referenced by the parties:
(i) Human Rights Code
5. (2) Harassment in employment. – Every person who is an employee has a right to
freedom from harassment in the workplace by the employer or agent of the employer or by
another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship,
creed, sexual orientation, gender identity, gender expression, age, record of offences, marital
status, family status or disability.
7. (2) Harassment because of sex in workplaces. – Every person who is an employee
has a right to freedom from harassment in the workplace because of sex, sexual orientation,
gender identity or gender expression by his or her employer or agent of the employer or by
another employee.
10. (1) Definitions. – In Part I and this Part,
…
“harassment”, means engaging gin a course of vexatious comment or conduct that is known
or ought reasonably to be known to be unwelcome.
(ii) Occupational Health and Safety Act
1.(1) Definitions. – In this Act,
…
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“workplace harassment means” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace
that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment;
“workplace sexual harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace
because of sex, sexual orientation, gender identity or gender expression, where the course
of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or
advance is in a position to confer, grant or deny a benefit or advancement to the worker
and the person knows or ought reasonably to know that the solicitation or advance is
unwelcome;
32.0.1 (1) Policies, violence and harassment. – An employer shall,
(a) prepare a policy with respect to workplace violence;
(b) prepare a policy with respect to workplace harassment; and
(c) review the policies as often as is necessary, but at least annually.
32.0.1 (2) Written form, posting. – The policies shall be inwritten form and shall be posted at
a conspicuous place in the workplace.
…
32.0.6 (1) Program, harassment. – An employer shall, in consultation with the committee or a
health and safety representative, if any, develop and maintain a written program to
implement the policy with respect to workplace harassment required under clause
32.0.1 (1) (b).
32.0.6 (2) Contents. – Without limiting the generality of subsection (1), the program shall,
(a) include measures and procedures for workers to report incidents of workplace
harassment to the employer or supervisor;
(b) include measures and procedures for workers to report incidents of workplace
harassment to a person other than the employer or supervisor, if the employer or
supervisor is the alleged harasser;
(c) set out how incidents or complaints of workplace harassment will be investigated and
dealt with;
(d) set out how information obtained about an incident or complaint or workplace
harassment, including identifying information about any individuals involved will not
b disclosed unless the disclosure is necessary for the purposes of investigating or
taking corrective action with respect to the incident or complaint, or is otherwise
required by law;
(e) set out how a worker who has allegedly experienced workplace harassment and the
alleged harasser, if he or she is a worker of the employer, will be informed of the
results of the investigation and of any corrective action that has been taken or that
will be taken as a result of the investigation; and
(f) include any prescribed elements.
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32.0.7 (1) Duties re harassment. – To protect a worker from workplace harassment, an
employer shall ensure that,
(a) an investigation is conducted into incidents and complaints of workplace harassment
that I appropriate in the circumstances;
(b) the worker who has allegedly experienced workplace harassment and the alleged
harasser, if he or she is a worker of the employer, are informed in writing of the result
of the investigation and of any corrective action that has been taken or that will be
taken as a result of the investigation;
(c) the program developed under section 32.0.6 is reviewed as often as necessary, but at
least annually, to ensure that it adequately implements the policy with respect to the
workplace harassment required under clause 32.0.6 (1)(b); and
(d) such other duties as may be prescribed are carried out.
V. The Parties’ Submissions
(a) The Employer
[66] The Employer has the onus to prove the disciplinable misconduct of each Grievor
on the basis of admissible evidence. It is also obligated to follow its own procedures
under the WHD Prevention Policy for administering discipline in the circumstances of this
case, that it has promulgated in accordance with article 6.1 of the collective agreement to
“make and apply reasonable rules and regulations to be observed by employees”.
[67] On behalf of the Employer, Mr. Agnew submitted the Employer had satisfied its
onus to show disciplinable misconduct amounting to sexual harassment by each of the
Grievors on the evidence presented, consistent with the “reasonable rules and
regulations” in the Employer’s well-publicized WHD Prevention Policy.
[68] There is no question that the Employer has both the statutory obligation under the
Occupational Health and Safety Act, supra, and Ontario Human Rights Code, supra and
the contractual authority to protect a worker from discrimination and harassment,
particularly sexual harassment, which the Employer submitted can be devastating to the
morale of employees if not addressed firmly. It is simply unacceptable to permit any form
of sexual harassment affecting the modern workplace, which all employees have the right
to expect. Women have for too long suffered the indignity of misogynistic men
questioning and/or mocking their capabilities and competence because of their sex, often
in the vilest of terms, creating a hostile work environment that employers have an
obligation to extinguish in promoting employment equality and respect, according to the
Employer.
[69] With that societal goal, Employer counsel noted that section 1 of the OHSA, which
defines “workplace sexual harassment” as “engaging in a course of vexatious comment
or conduct against a worker in a workplace because of sex, sexual orientation, gender
identity or gender expression, where the course of comment or conduct is known or ought
reasonably to be known to be unwelcome”, sets a legal standard that all of the Grievors
are presumed to know and expected to follow in both the letter and spirit of the law.
Likewise, sections 5(2) and 7(2) of the HRC prohibit harassment in employment and
harassment because of sex in workplaces, also generally defined in section 10(1) as
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“engaging in a course of vexatious comment or conduct that is known or ought reasonably
to be known to be unwelcome.”
[70] Given these legal proscriptions on sexual harassment, the Employer submitted it
wasn’t a valid defence for any of the Grievors to say: “I didn’t think someone was going
to hear or would find out about” his vexatious comments against a female or male co-
worker or former co-workers because of sex, where the Grievor knew or reasonably ought
to have known that such vexatious comments would be unwelcome. Once the Grievor
puts such comments in writing and sends that writing electronically into cyberspace to
other members of a “chat group”, some of whom the Grievor might not know, the Grievor
can have no expectation of “privacy” of his communication and runs the risk of what
happened in the instant case where the communication came to the attention of at least
one of the targeted employees in the workplace, mushrooming from there to uncovering
a trove of similar vexatious comment by other employee members of the chat group.
[71] Under the foregoing provisions of the OHSA and HRC, which the Employer urged
me to give a “broad and purposive reading”, it is enough to attach liability to the sender
of sexually harassing electronic communications that he knew or reasonably ought to
have known would be unwelcome, which was self-evident on any objective reading of the
words used by the Grievors. Thus, the Employer submitted the OHSA and HRC
independently establish a legal standard making the Grievors accountable for spreading
vexatious rumours or malicious gossip about their co-workers on the basis of sex via
social media. Once those words are unleashed into cyberspace, the sender is
responsible for wherever they may ultimately land or be re-sent by anyone in the chat
group, and must suffer the consequences of his actions, according to the Employer.
[72] The Employer also submitted that the evidence is conclusive that it has
promulgated “reasonable rules and regulations to be observed by all employees” through
its WHD Prevention Policy prohibiting all forms of discrimination, harassment and sexual
harassment in the workplace, or reasonably affecting the workplace, in accordance with
article 6.01 of the collective agreement. Under that contractual authority, and in
compliance with its legal obligations codified by subsections 32.0.6 and 32.0.7 of the
OHSA, the Employer submitted that all employees received ongoing training in
recognizing discriminatory conduct, harassment and sexual harassment, and were
warned of the Employer’s “zero tolerance” for such misconduct. The employees were
also instructed that the prohibition in its WHD Prevention Policy on all forms of
discrimination, harassment and sexual harassment extended to vexatious comments on
the basis of sex transmitted “through social media” and/or “offensive behaviour arising
from the use of electronic media devices and systems”.
[73] Given the language of the WHD Prevention Policy coupled with the training that
employees received in understanding and applying the prohibitions mandated by the
WHD Prevention Policy, the Employer submitted there could be no doubt that the
Grievors knew that their written comments maligning individuals on the basis of sex was
considered just as offensive when transmitted through social media and/or using
electronic devices, as it is when spoken within the workplace itself.
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[74] The reach of social media in today’s society is so pervasive, creating a fallout that
was certain to resonate through the community of the Employer’s workers, possibly for
years in the unchecked cyberspace, that the Employer submitted it was within its statutory
obligation and contractual right to prohibit all vexatious commentary constituting forms of
harassment, discrimination and/or sexual harassment communicated via social media, in
the overriding interest of protecting its workers from such harassment that would
otherwise contribute to a hostile work environment. That approach to the proliferation of
social media outlets in disseminating malicious language about (mostly) female co-
workers, according to the Employer, where the anonymity of the Internet is used to hide
the identity of those responsible, is consistent with a number of arbitration decisions filed
by the Employer that have upheld the discharge of long service employees with otherwise
clear disciplinary records for disseminating vexatious commentary constituting sexual
harassment through one of the social media networks, which the Employer urged me to
follow in the instant case.
[75] Consequently, the Employer submitted the specific comments attributed to each
of the Grievors in the Agreed Statement of Facts (which Employer counsel took me
through in exacting detail) transmitted through social media constituted clear examples
of sexual harassment, often using the most degrading and contemptable of language,
justifying termination as the appropriate penalty in each case even without the Employer’s
announced “zero tolerance” to such misconduct. And any apology by the Grievors for
their misconduct was too little too late to be taken into account in mitigating the proper
penalty of discharge in each case.
[76] In support of its representation, the Employer also referred to the following
authorities: Ottawa-Carleton District School Board v. O.S.S.T.F., District 25, 2006
CarswellOnt 8752, [2006] O.L.A.A. No. 597, 154 L.A.C. (4th) 387, 87 C.L.A.S. 203 (Ont.
Arb.) (Goodfellow), Canada Post Corp. v. C.U.P.W., 2012 CarswellAlta 449, [2012]
A.W.L.D. 2979, [2012] A.W.L.D. 2980, [2012] A.W.L.D. 2981, [2012] A.W.L.D. 2981,
[2012] A.W.L.D. 2082, [2012] A.W.L.D. 2983, [2012] A.W.L.D. 2984, [2012] A.W.L.D.
2989, [2012] C.L.A.D. 53, 110 C.L.A.S. 53, 216 L.A.C. (4th) 207 (Alta. Arb.) (Ponak), Re
Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D.), 2014 CarswellOnt 8009,
O.L.A.A. No. 180, 119 C.L.A.S. 57, 244 L.A.C. (4th) 63 (Ont. Arb.) (Trachuk), S.G.E.U. v.
Saskatchewan (Ministry of Corrections, Public Safety & Policing), 2009 CarswellSask
913, [2009] S.L.A.A. No. 21, 106 C.L.A.S. 157 (Sask. Arb.) (Danysiuk), Re Calgary (City)
and CUPE, Local 38 (Morrison), 2015 CarswellAlta 979, [2015] A.W.L.D. 2958, [2015]
A.W.L.D. 2959, [2015] A.G.A.A. No. 29, 123 C.L.A.S. 268, 256 L.A.C. (4th) 217 (Alta. Arb.)
(Casey), Lougheed Imports Ltd. v. U.F.C.W., Local 1518, 2010 CarswellBC 3021, [2010]
B.C.L.R.B.D. No. 190, [2011] B.C.L.R..B.D. 317, [2011] B.C.W.L.D. 318, [2011]
B.C.W.L.D. 323, 186 C.L.R.B.R. (2d) 107, 186 C.L.R.B.R. (2d) 82, 2011 C.L.L.C. 220-
003 (B.C. Lab. Rel. Bd.), Re Unifor, Local 922 and Nutrien Ltd. (Hedlin), 2020
CarswellSask 678, 147 C.L.A.S. 172, 324 L.A.C. (4th) 221 (Sask. Arb.) (Wallace), and
Janzen v. Platy Enterprises Ltd., [1989] S.C.R. 1252, 1989 CanLII97 (SCC).
(b) The Union
[77] Mr. Blackstone, on behalf of the Union, did not take issue with the essential
premise that sexual harassment has no place in the modern workforce, justifying a
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penalty for such misconduct proportionate in all the surrounding circumstances and
subject to the mitigating considerations of the years of service, no disciplinary record, the
relatively brief and, in a number of examples, innocuous comments by the individual
Grievors, and the apology by each Grievor in the Agreed Statement of Facts.
[78] Of primary consideration, according to the Union, was the fact that all of the
comments under consideration were made by the Grievors outside of work and on their
own time, that with the exception of Ms. A who became aware of the offensive comments
by Mr. Juteram from the screenshot she received on or about September 23, 2019 from
an unidentified “friend”, there was no evidence that any of the employees or former
employees mentioned by any of the other Grievors during their group chats was ever
aware that their names had been mentioned, to support a finding of any impact of those
words in the workplace itself.
[79] Also, the Union emphasized that all of the Grievors reasonably believed that they
were communicating in a private medium via their personal cellphones through
WhatsApp, which the parties agreed is an encrypted social media platform that is not
accessible to the general public, hence undermining any concern the Employer might
have in safeguarding its reputational interests in the matter. If the Grievors were wrong
about that, which was contrary to the facts presented, the Union submitted their intention
to communicate privately, outside of work, and out of the presence of the current and
former employees referred to during their group chats, should be a significant factor in
mitigating the seriousness of any inappropriate language for purposes of determining the
proper discipline in each case.
[80] As for the measure of appropriate discipline in the event the Grievors’ comments
were adjudged to be contrary to the Employer’s WHD Prevention Policy, the Union took
me through every allegation of sexual harassment on the basis of the language attributed
to each Grievor in support of its submissions that:
(a) no discipline was warranted because a specific Grievor’s words could
not be construed as any form of sexual harassment, as in the case
where one Grievor was merely repeating a comment by another person
maligning a former male executive of the Employer as a “back-stabbing
dick”, which could be taken not to have a sexual connotation, or had
responded to the admittedly inappropriate comment of another
participant in the group chat with the words, “10-4” to acknowledge
receipt of the information (without condoning or agreeing with the
comment), or was repeating the rumour of a Union executive member
stumbling upon two other executive members engaging in consensual
sexual activities at a Las Vegas hotel;
(b) only minimal discipline was appropriate where an inappropriate
comment that could support a claim of sexual harassment was an
isolated incident, briefly stated, possibly up to one year before the
Grievor received discipline, which delay could only support the
conclusion that the Grievor or Grievors involved were of no risk of
repeating such misconduct as their performance had been acceptable
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throughout that year (or more) interval, which would justify the most
minimal of discipline in the form of a written warning; and
(c) in the arguably worse case of Mr. Juteram, whose screenshots of
messages that he wrote in September 2019, which admittedly used
vulgar terms in maligning the competence and capabilities of Ms. A,
were forwarded to Ms. A by someone other than Mr. Juteram, whose
identity was known to Ms. A but never revealed to the Employer, in
circumstances where Ms. A refused to file a formal complaint required
under the WHD Prevention Policy, and failed to cooperate with the
Employer’ investigation into the matter.
[81] Given the additional fact that Mr. Juteram was disciplined, in part, because he was
deemed to have refused to cooperate sufficiently with the Investigator’s demands that he
disclose more information and screenshots of the group chat activities from his personal
cellphone, while Ms. A did not face repercussions for her failure to cooperate, the Union
submitted that, at most, Mr. Juteram should have received discipline in the form of a
relatively short suspension measured in days, instead of summary dismissal.
[82] Finally, in connection with the “zero tolerance” approach taken by the Employer to
the finding of sexual harassment, whether inside or outside of the workplace and however
brief, which resulted in the summary termination of all of the Grievors, the Union submitted
that in the absence of an agreed penalty of discharge in the collective agreement for any
form of sexual harassment, which was not negotiated in the present case, I should reject
the principle of automatic discharge under the Employer’s “zero tolerance” stance, which
represented a complete usurpation of the principle that the measure of appropriate
discipline was arrived at from the consideration of all surrounding circumstances and
mitigating factors, which was foreclosed by the Employer’s unilaterally imposed “zero
tolerance” perspective.
[83] The Union also referred to the following decisions in support: William Scott & Co.
v. C.F.A.W., Local P-162, 1976 CarswellBC 518, [1976] 2 W.L.A.C. 585, [1976]
B.C.L.R.B.D. No. 98, [1977] 1 Can. L.R.B.R. 1 (BC Lab. Rel. Bd.), Toronto (City) v.
Canadian Union of Public Employees, Local 79 (Katsuras Grievance), [2015] O.L.A.A.
No. 349, 258 O.A.C. (4th) 188, 2015 CarswellOnt 14401 (Ont. Arb.) (Randall), Canadian
Broadcasting Corporation v. Canadian media Guild (Ahmar Khan), 2021 CanLII 761 (CA
LA) (Slotnick), Oakville (Town) v. Oakville Professional Firefighters’ Assn., Local 1582
(Devier Grievance), [2020] O.L.A.A. No. 350 (Ont. Arb.) (Stout), Louie Napish v. Treaty
Three Police Service, 2019 CanLII 51850 (ON LRB) (Turtle), Amalgamated Transit
Union, Local 508 v. Halifax (Regional Municipality), [2017] N.S.L.A.A. No. 1 (N. S. Arb.)
(Kathryn Raymond), Re Levi Strauss & Co. and Workers United Canada Council
(Grievance of Gerald Brown), 2020 CanLII 44271 (ON LA), (Ont. Arb.) (Luborsky), Re
Humber River Regional Hospital and Ontario Nurses’ Association (Grievances of Ezra
Taylor), 2012 CanLII 42059 (ON LA) (Ont. Arb.) (Stout), and Ontario Public Service
Employees Union v. Ontario (Ministry of Natural Resources) (Wickett Grievance), [2005]
O.G.S.B.A. 93, 143 L.A.C. (4th) 14, LAX/2005-578, 82 C.L.A.S. 314 (Ont. G.S.B.)
(Petryshen) and R v. Phagura, 2019 BCSC 1638 (B.C. S. C.).
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(c) Additional Authorities
[84] And I asked the parties to consider and invited their submissions, if any, on the
applicability of the relevant principles discussed in the following arbitration and court
decisions: Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (CanLII)
(Ont. C. A.), Re Cara Operations Ltd. and Teamsters Chemical, Energy and Allied
Workers’ Union, Local 647 (Palmeiri), 141 L.A.C. (4th) 266 (Ont. Arb.) (Luborsky), Re
Sysco Food Services of Toronto and Teamsters, Local 419 (Cavan), 210 L.A.C. (4th) 376
(Ont. Arb.) (Luborsky) and Re Ontario (Ministry of Community Safety and Correctional
Services) and OPSEU (Lunario), 261 L.A.C. (4th) 113 (Ont. G.S.B.) (Luborsky).
VI. Reasons for Decision
(a) The four questions
[85] On the Agreed Statement of Facts and supporting documents, there is no evidence
contradicting the claims of all Grievors that their alleged misconduct occurred while the
Grievors were off-duty and away from the workplace, communicating with each other via
their personal cellphones through the encrypted WhatsApp social media network that was
private to their chat group, not intended by any of the Grievors to be shared with Ms. A or
any of the other people mentioned in those chats, and not accessible to the general public.
In such circumstance the first fundamental question is whether the Employer has any
authority over the conduct of these Grievors while they are off-duty?
[86] Also, an essential test in the Employer’s WHD Prevention Policy to be applied in
cases of alleged harassment and discrimination occurring outside the workplace via
social media is the demonstration of a “negative impact within the workplace”, or in the
precise words of the Scope and Application clause of the official WHD Prevention Policy:
This policy also covers harassment and discrimination which occurs outside the workplace but
which is having a negative impact within the workplace. Without limiting the generality of the
above, this policy covers harassment and discrimination through social media where it is
established that the impact of the harassment and/or discrimination is being manifested
within the workplace.
[Emphasis added]
[87] Such pronouncements (which are consistent with the arbitral jurisprudence on
point) give rise to the second fundamental question of whether the evidence presented
(or more accurately, not presented) satisfies the test of establishing “that the impact of
the harassment and/or discrimination is being manifested within the workplace”?
[88] The third important question emerging from the review of my findings of facts in
this case, is whether the Employer’s failure to follow many of its own written procedures
mandated by the WHD Prevention Policy in handling the alleged sexual harassment
allegations undercut its ability to rely on the Policy?
[89] And finally, recognizing that the official WHD Prevention Policy does not expressly
articulate a “zero tolerance” stance to findings of workplace sexual harassment in the
sense of mandating “automatic termination”, but rather suggests a range of potential
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disciplinary responses to findings of discrimination and/or harassment in the workplace,
where the Employer failed to provide any evidence on the reasons for terminating the
employment of all of the Grievors leading to the conclusion that the penalty of automatic
termination was imposed in each case, even if the alleged off-duty misconduct of any of
the Grievors was disciplinable is the Employer’s “zero tolerance” stance enforceable?
(b) Review of general principles
[90] The general principles considered by arbitrators in assessing the legitimacy of
discipline for off-duty employee misconduct are summarized in Brown, Donald J. M. and
David M. Beatty, Canadian Labour Arbitration, 5th ed. (Toronto: Thomson Reuters,
online), as follows in relevant part at para. 7:15 – “Off-duty Behaviour” (footnotes omitted):
Arbitrators have always drawn a line between employees’ working and private lives. They often
make the point that employees are not custodians of the characters or reputations of their
employees. The basic rule is that an employer has no jurisdiction or authority over what employees
do (including where they live), outside working hours, unless it can show that its legitimate business
interests are affected in some way. As a result, in order for an employer to justify disciplining
an employee for misconduct committed when he or she is not on duty, it must prove that the
behaviour in question detrimentally affects its reputation, renders the employee unable to discharge his or her employment obligations properly, causes other employees to refuse or
to be reluctant to work with that person, or inhibits the employer’s ability to efficiently
manage and direct the production process. Off-duty misconduct that occurs on company
property is subject to discipline as well.
Whether a connection can be drawn between an employee’s private life and the employment
relationship will vary with the facts of each case and depends on the nature of the employer’s
operations, the type of work the employee does, and the character of the conduct at issue. …
…
In all cases, however, arbitrators have insisted that employers show there is a real causal
connection between the events that occurred when the employee was not on duty and the
efficient operation of their businesses. They are required to undertake a meaningful investigation
of how seriously the employee’s personal activities will affect their interests, and not rely on
unsubstantiated supposition and speculation. Ultimately, an arbitrator must balance the competing
interests of the employer and employee, and it has been held that any interference with the
employee’s private affairs must be proportional to the interest of the employer that is at stake.
[Emphasis added]
[91] In Re Toronto District School Board and C.U.P.E., Van Word Grievance, supra, I
considered the authority of an employer to discipline an employee working as a “School
Based Safety Monitor” who assaulted the parent of one of his students during a dispute
at a gas station, unrelated to work and while off duty after normal school hours, for which
the employee was charged with criminal offences that were later withdrawn. The
following principles in cases of off-duty misconduct applicable in the factual
circumstances of the five grievances before me, were identified at para. 59:
59. That the Employer generally is “not the custodian of the grievor’s character or personal conduct”
outside the workplace is not questioned: per Arbitrator Laing in Re Port Moody (City) and C.U.P.E.,
Loc. 825, supra, at p. 221. In order to sustain any discipline in cases of off-duty misconduct, the
Employer has the burden to establish that the misconduct has seriously prejudiced or injured
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its reputation and/or legitimate business interests, with the level of discipline proportionate
to the harm: see the discussion in Re Colchester East Hants District School Board and C.U.P.E.,
Loc. 1047, supra, at pp. 77 – 79, and references therein. The case of Re Millhaven Fibres Ltd.,
Millhaven Works and Oil, Chemical & Atomic Int’l Union, Loc. 9-670 [(1967), 1 (A) Union-
Management Cases, 328 (Anderson)], quoted in Re Air Canada and Int’l Assoc. of Machinists,
Lodge 148 (1973, 5 L.A.C. (2d) 7 (Andrews), is often cited for the following list of considerations (at
p. 8) applicable in circumstances of off-duty misconduct, the satisfaction of any one may justify a
disciplinary response of varying degrees depending on the extent to which the misconduct is
inconsistent with the nature of the employment.
…if the discharge is to be sustained on the basis of a justifiable reason arising out of
conduct away from the place of work, there is an onus on the Company to show that: -
(1) the conduct of the grievor harms the Company’s reputation or product
(2) the grievor’s behaviour renders the employee unable to perform his duties
satisfactorily
(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other
employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and thus
rendering his conduct injurious to the general reputation of the Company and its
employees
(5) places difficulty in the way of the Company properly carrying out its function of
efficiently managing its works and efficiently directing its working forces.”
[Emphasis added]
[92] In Ottawa District School Board v. O.S.S.T.F., District 25, supra, a three-person
board of arbitration chaired by Arbitrator Goodfellow adopted the same test from Re
Millhaven Fibres Ltd., supra, in determining whether the school board employer could
discipline a custodian who was convicted of robbing a bank during his lunch break from
a small elementary school. While concluding the employer had demonstrated sufficient
nexus in the off-duty misconduct with the school board’s reputation for ensuring the safety
of the young children under its care and supervision, justifying its decision to terminate
the employment relationship, the arbitrator noted the following limits applying to all
employers at para. 17:
17. This does not mean that the School Board, like other employers, is entitled to be the “custodian
of the grievor’s personal character or conduct”: see eg. Port Moody (City) v. C.U.P.E., Local 825
(1997), 63 L.A.C. (4th) 203 (B.C. Arb.) (Laing). Employers of school boards, like other
employers, do not surrender their personal autonomy when they commence the employment
relationship. In order for an employee’s off-duty conduct to provide grounds for discipline
or discharge, it must have a real and material connection to the workplace, in the manner
described above. And, where the interest asserted by the employer, as it is here, is in its public
reputation and in its ability to be able to successfully carry out its works, the concern must be both
substantial and warranted. The test, so far as possible, is an objective one: what would a
reasonable and fair-minded member of the public (in this case, the school community) think if
apprised of all of the relevant facts. Would the continued employment of the griever, in all of the
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circumstances, so damage the reputation of the employer as to render that employment impossible
or untenable?
[Emphasis added]
[93] The evolution of Internet communications over the past two decades through e-
mail, text messaging, blogs and the proliferation of social media sites with different
characteristics, has introduced a new challenge for employers in policing off-duty
misconduct having an impact on the workplace. It is appropriate to take administrative
notice that virtually every employee has a personal cellphone and is active on one form
or another of e-mail, texting, blogs and social networks to varying degrees.
Communications via one’s personal cellphone through these media are today likely more
common than face-to-face and even direct real-time telephone interactions between
individuals, both during and outside of work. In this context a number of arbitration awards
have considered the questions of whether, and under what circumstances, the electronic
communications of employees through various social media networks become any
concern of the employer, and if so, to what extent they expose an employee to legitimate
discipline or discharge where misconduct is found to have been conducted over the
Internet.
[94] The Employer referred to a number of arbitration decisions where an employee
received discipline for inappropriate comments made through social media amounting to
forms of sexual or other harassment, focusing primarily on their use of “Facebook” and
“Twitter”. What is apparent about all of these decisions, is the general qualification that
in order to sustain legitimate discipline the communication must have been publicly
disseminated or available and shown to have a real, as opposed to hypothetical or
presumed, negative impact in the workplace and/or the specific target or targets of the
inappropriate language. It is also noteworthy that none of the arbitration awards filed by
the parties dealt specifically with communications through the encrypted “WhatsApp” app
which the parties recognized as a medium that is private to an approved chat group, and
where the evidence shows the Grievors believed their communications were private that
they did not intend to share with anyone outside of the group, and thus are all
distinguishable on that important fact alone.
[95] For example, in Canada Post Corp., supra, which determined the employer had
just cause to terminate the employment of an older employee with 31-years of service
who posted a number of derogatory, mocking statements about her supervisors to more
than 50 of her Facebook “friends” which included a number of coworkers, the evidence
established that two of the disparaged supervisors became extremely distraught after
hearing about and reading the postings, requiring significant time off work for emotional
distress. In deciding whether the employer had the ability to discipline an employee for
comments made outside of work that were widely distributed through the employee’s
Facebook account (which included other employees), that were found to be grossly
insubordinate, potentially damaging to the employer’s reputation among the large group
of recipients, and greatly harmed the supervisors who became aware of the disparaging
posts, Arbitrator Ponak wrote at para. 101 that: “There is ample case law that supports
the principle that what employees write in their Facebook postings, blog, and emails, if
publicly disseminated and destructive of workplace relationships, can result in
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discipline” (emphasis added). Given the wide distribution of what the arbitrator found at
para. 106 to be “far beyond the boundaries of acceptable workplace criticism…
undermining managerial authority and further poisoning an already challenging work
environment”, the arbitrator concluded the employer had just cause to terminate the
employment relationship, rejecting the union’s appeal to substitute a lesser penalty where
the grievor was “largely unapologetic”.
[96] In Tenaris Algoma Tubes Inc., supra, Arbitrator Trachuk considered the discharge
of a male crane operator with only 3.5 years of service who, having a complaint about the
performance of a female coworker referred to as “X”, wrote a post on his Facebook
account after his shift and, while not identifying X by name, referred to distinctive physical
characteristics that would identify her to many other employees who were among his
Facebook friends (i.e., part of the group of people receiving the post), and after some on-
line goading by another “friend”, advocated in a subsequent posting that “a violent and
humiliating sex act be inflicted upon X” and then “mentioned a cruel nickname associated
with X’s personal characteristic.” The targeted woman soon found out about the post
from another coworker, and while “in tears” reported it within a few hours to the employer’s
Industrial Relations officials, who were able read the offensive post on the grievor’s
Facebook page themselves even though they were not “friends”, because it was open to
the general public for anyone with access to a computer terminal connected to the
Internet. In upholding the discharge and rejecting the union’s request to reduce the
penalty, the arbitrator reasoned at para. 40 that the grievor, “must have anticipated that
[X] would see the posts or hear about them because his Facebook “friends” included
coworkers [and] he had apparently not used any privacy settings...[and]…did not delete
his comments as soon as he made them but left them up for 10 hours.” In focusing on
the grievor’s obvious intent in posting his comments on Facebook, the arbitrator observed
at para. 47:
…the point of posting on Facebook is to “share” one’s views with other people. It is an act of
publicity. In this case, the grievor knew that he was sharing his views about X with all of his
Facebook friends, including his coworkers and apparently anyone else who went to his page.
He knew co-workers had been the first post because they responded to it but he continued anyway.
Therefore, he had to expect that X would find out about them. In fact, the only reasonable
conclusion to be drawn is that he must have intended for her to find out about them. This is
not “off duty” conduct because it was directed at poisoning X’s work environment….
[Emphasis added]
[97] Thus, it was apparent on the facts of the foregoing arbitration decision that the
grievor reasonably knew and intended that his comments would come to the attention of
X through his Facebook post to a number of her co-workers that was also viewable by
the public generally, and which was directed at “poisoning” X’s work environment.10 The
elements of “publication” of patently humiliating and threatening comments to a wide
audience with the intention of affecting the intended victim’s sense of security in the work
environment were essential considerations by the arbitrator in upholding the discharge.
10 This, of course, is distinguishable from the facts before me where, as discussed below, I find the Grievors did not
intend Ms. A or any of the other people mentioned in their posts over the WhatsApp app to receive or have any access
to their comments.
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[98] In the final example relied upon by the Employer, a three-person board of
arbitration chaired by Arbitrator Denysiuk upheld the terminations of three correctional
officers for publishing derogatory pictures and making racist comments through a
Facebook Group about Aboriginal inmates at the correctional institution where the
grievors worked (being responsible for overseeing the care and conduct of the inmates),
who were entitled to or received compensation in the settlement of claims arising out of
“Indian residential schools” in Saskatchewan (Ministry of Corrections, Public Safety &
Policing), supra. One of the employees of the correctional institution, who administered
the program for the payment of appropriate compensation to the inmates entitled to share
in the settlement funds, became aware of the offensive posts from other employees and
complained to the institution’s management, which prompted the employer’s investigation
and ultimate decision to terminate the employment of the three grievors. The chair of the
board of arbitration affirmed at the outset of the board’s analysis that the onus was on the
Government employer to demonstrate it had just cause to discipline the grievors (at para.
119), which it had satisfied. And in reviewing the relevant legal principles in issue the
board of arbitration accepted at para. 124:
…it is clear from the arbitral authorities that the off-duty conduct of an employee can constitute
grounds for discipline where the behavior in question detrimentally affects the employer’s reputation
or renders the employee unable to properly discharge his or her employment obligations
Accordingly, there are times when private activities become matters over which an employer has
jurisdiction. This is such a case for a number of reasons.
[99] On the evidence before the board of arbitration the chair found that one of the
grievors created the Facebook Group, “quite likely at work” (at para. 120), which included
16 employees of the correctional institution as well as 36 people from outside of the
workplace that the union claimed was a “private group”, prompting the chair to respond
at para. 127 that by inviting 36 people from the broader community it had lost any sense
of being a private discussion group, with the further observation that: “The reality of
Facebook and other internet sites is that privacy and secrecy can never be guaranteed.
Participants can never be entirely sure who will view the site”. The evidence also
supported the finding (characterized by the board as “perhaps more importantly” at para.
128) that all of the grievors used the correctional institution’s computers during their
working hours and while they were at work to post the inappropriate texts and pictures
that the board of arbitration found to be more than bad taste and bad humour, being
sufficiently “offensive” to justify discipline (at para. 130). Given the absence of any
apologies, recognition of wrongdoing or expressions of remorse by the grievors, the board
of arbitration held that discharge was justified in each case, having concluded (at para.
132) that, “the grievor’s conduct was injurious to the interests of the Government and that
it was incompatible with the faithful discharge of their duties.”
[100] While the foregoing arbitration decision is distinguishable from the instant case on
many of its facts (including the important differences between Facebook and WhatsApp
on expectations surrounding the privacy of communications using those apps), its
rationale repeats the general acceptance by arbitrators that where there is a sufficiently
broad dissemination or publication of vexatious comments through social media that
damage the reputation of the employer and/or are shown to have a negative impact on
individual employees targeted by the offensive posts that is manifested within the
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workplace itself, the employer has a legitimate interest in the on-line communications,
justifying the discipline of the responsible employees in appropriate circumstances.
[101] To summarize the foregoing arbitral jurisprudence on the authority of the Employer
to properly discipline employees for off-duty misconduct amounting to sexual harassment,
where the mode of communicating the vexatious words supporting a finding of sexual
harassment in the workplace is through social media (and outside of those situations
where the words are a sexual solicitation or advance by a person in a position to confer
or deny an employment benefit or advancement), I direct myself to the following
considerations in assessing the evidence before me in the present case:
(a) The onus is on the Employer to prove all essential elements of the
offence of sexual harassment in or affecting the workplace on a
balance of probability standard;
(b) In discharging that onus, the Employer must establish that the
misconduct has seriously prejudiced or injured its reputation and/or
legitimate business interests;
(c) A finding of sexual harassment for off-duty misconduct in the form
of words transmitted through social media requires the Employer to
satisfy two essential elements or tests: First, the evidence must
show that the Grievors were engaged in a course of vexatious
comment against a worker or workers in the workplace where the
words disseminated by the Grievors were known or ought
reasonably to have been known to be unwelcome; Second, it is
established that the words transmitted through social media have a
negative impact manifested within the workplace;
(d) The intention of the person(s) posting the inappropriate comments
is a consideration in making a finding of sexual harassment affecting
the workplace having regard to all of the surrounding
circumstances;
(e) And, the Employer must demonstrate a real (as opposed to
hypothetical or speculative) connection between the improper
online communication that occurred while the employee was not on
duty and raising a “substantial and warranted”11 concern over the
efficient operation of the Employer’s business, applying an objective
test in the matter.
(c) The WhatsApp communications were private, outside the Employer’s
authority
11 Per Arbitrator Goodfellow in Ottawa District School Board, supra, at para. 17.
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[102] Having thus considered the parties’ submissions and their authorities,12 I turn to
the first of my four questions to ask: Did the Grievors’ use of the WhatsApp social network
via their personal cellphones with the intention that its contents would be shared only by
members of that chat group, render the impugned electronic communications private, and
thus outside of the authority of the Employer?
[103] The arbitral jurisprudence summarized above indicates that arbitrators “have
always drawn a line between employees’ working and private lives” and that “an employer
has no jurisdiction or authority over what employees do (including where they live),
outside working hours, unless it can show that its legitimate business interests are
affected in some way” (per Canadian Labour Arbitration, 5th ed., supra, at para. 7:15).
Saying dirty words or expressing reprehensible thoughts amongst one’s own friends while
off-duty and outside of work, even where some of those friends are work-mates, is not
the employer’s concern unless it can establish a real (as opposed to hypothetical or
speculative) nexus to the workplace itself having a negative impact on its business.
[104] None of the arbitration awards submitted by the parties deals specifically with
communications over the “WhatsApp” program. The Union however filed a 2019 criminal
law decision of the British Columbia Superior Court in R v. Phagura, supra, which is
instructive. It dealt with an application under section 8 of the Canadian Charter of Rights
and Freedoms, Canada Act 1982, 1982, c. 11 (U.K.), Sched. B [Charter], seeking to
exclude evidence obtained in the course of a police investigation of an accused charged
with sexually assaulting “Ms. M.K.” Section 8 of the Charter provides that, “Everyone has
the right to be secure against unreasonable search or seizure” and the evidence sought
to be excluded pursuant to that right consisted of screenshots of messages on Ms. M.K.’s
cellphone sent to her by the accused through the WhatsApp app. Mr. Justice Crabtree
accepted at para. 15 that the WhatsApp program “transmits text messages and calls from
one mobile phone user to another” and added at para. 29 that, “The electronic messages
sent are encrypted, which reduces the ability for anyone other than the two participants
to the chat to observe the messages…[and that]… even the operators of the program or
application do not have access to the messages that flow through the WhatsApp
program.”13 In reviewing the relevant criminal jurisprudence on the matter, the trial judge
held that among other factors (not immediately relevant), an accused seeking the
exclusion order had to demonstrate “a subjective expectation of privacy in the subject
matter” that was assessed from the totality of the circumstances to be “objectively
reasonable” (at para. 9). On the facts of that case, while the accused was found to have
had a subjective expectation that his electronic communications to Ms. M.K. were private,
the court held it was not objectively reasonable where the threatening messages were
sent to the victim of the sexual assault who could be expected to report them to the police
after the assault. However, the ruling supports the conclusion that the evidence would
otherwise be excluded under section 8 of the Charter where both the sender and the
12 I would note here that while I carefully read all of the authorities filed in the proceedings, I have concentrated on
and thus only referred those I found most relevant to the appropriate analysis and determination of the present case.
13 In this case there were only two participants in the WhatsApp chat, but there is nothing in the Decision to suggest
the principles described would be different for a group chat where the evidence shows the senders of the messages
had the subjective intention to keep the communications private, which was found to be objectively reasonable.
- 50 -
recipient of the message through WhatsApp reasonably expected and intended to treat
the electronic communication as private between themselves.
[105] That latter situation is closer to the circumstances of the present case (while
recognizing that the test under the criminal law is more stringent than for a civil arbitration
proceeding). On the evidence before me I find, as the parties agreed (and in fact as Mr.
Radovic mentioned in his interview with the Investigator), that unlike Facebook, Twitter
and a number of other social media networks, WhatsApp is an encrypted means of
communication between a group of individuals that is private to its users, and where
access to the group is controlled by some person or persons of the group itself, leading
to the conclusion that both sender and receiver of text messages through the WhatsApp
program have a reasonable expectation of privacy.
[106] Also, unlike the situation in Tenaris Algoma Tubes Inc., supra, where the grievor
published vexatious comments through his Facebook page to a relatively large group of
coworkers in the workplace that he reasonably intended would come to the attention of
the female target of those comments, and where members of the general public who were
not Facebook “friends” could nevertheless gain access to the offensive posts via their
own computer terminals, the evidence before me is that through their personal
cellphones: (a) only the members of the WhatsApp chat group had access to the offensive
commentary;14 (b) all of the Grievors reasonably believed and intended their comments
to be private amongst themselves which they didn’t share with anyone else; and (c)
outside of the members of the private chat group, the comments were not available to the
general public.
[107] Aside from Mr. Juteram’s circumstances considered later in these Reasons, the
evidence shows that the only way for the Investigator to discover the offensive language
used by Messrs. Edson, Pelley, Sousa and Radovic, was to warn Mr. Juteram that his
obligation to “cooperate” with her investigation under the WHD Prevention Policy required
that he disclose the screenshots of inappropriate comments from other members of the
chat group, with the clear implication that Mr. Juteram would face further discipline (and
in fact did) unless he fully complied with her demands. Neither the Investigator nor any
other employee or member of the public outside of the chat group had access to that
information, which was only available via the personal cellphones of the chat group
members.
[108] The evidence of the Investigator’s insistence that she had the right to information
from Mr. Juteram’s personal cellphone, which she then used (to the extent he acceded to
her demands) in expanding her inquiry to find other employees who had written any of
the “keywords” she specifically searched from Mr. Juteram’s screenshots in the process
of identifying the other Grievors, raises very troubling questions leading to the conclusion
of Employer malfeasance in investigating, expanding and prosecuting its cases against
all of the Grievors: Specifically, what is the extent to which, if any, the Employer through
its Investigator, had the right to insist upon disclosure of the contents of the private
cellphones of Mr. Juteram (and any other Grievor), along with the propriety of the
14 I use the words, “offensive comment” here and throughout these Reasons for reference purposes only and without
making any determination that the words used by the Grievors, in isolation or in context, constituted forms of sexual
harassment if shown to have had a negative impact in the workplace.
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Investigator’s conduct in effectively conducting a “fishing expedition” to find evidence on
which to support a later claim of sexual harassment against at least Messrs. Edson,
Pelley, Sousa and Radovic, whose private cellphone communications were only revealed
through the Investigator’s expansive search?
[109] The Employer’s action, by its Investigator, to insist that Mr. Juteram disclose
information from his personal cellphone (and, through that doorway, then intrude upon
the private cellphone conversations of the other Grievors without their consent), in my
opinion constituted a violation of the negotiated limitation on the Employer’s entitlement
under article 6.1 of the collective agreement to “make and apply reasonable rules and
regulations to be observed by employees” in managing the enterprise. Any purported
requirement of an employee to open up his/her personal cellphone as a matter of the
Employer’s managerial prerogative, without express language in the collective agreement
conferring that right, overstepped the Investigator’s reasonable authority.
[110] A personal cellphone is a very private device. It is fair to say that for some people,
it is part of their very being. It typically contains personal pictures and records of sensitive
communications between family and friends, along with confidential financial and banking
information. In my opinion, unless the Employer can establish a clear contractual right to
disclosure of any of the contents of an employee’s personal cellphone, or can point to
some statutory or judicial authorization for access to the records of anything within that
device, which the evidence failed to show, the Employer has no right to demand, let alone
receive, any of the contents of that cellphone.
[111] There was no justification for the Investigator to insist upon data from Mr. Juteram’s
cellphone, and then for the Employer to discipline him, in part, for his refusal to fully
accede to the Investigator’s demands on the premise that it had the right to this
information under the terms of its WHD Prevention Policy which states that, “All
employees shall…cooperate fully in the investigation of complaints or incidents of
workplace discrimination or incidents of workplace discrimination and/or harassment”15
In my assessment, to the extent that this term of the WHD Prevention Policy purports to
authorize the Employer’s demand and access to data from any of the Grievors’ private
cellphones, it is an unreasonable requirement that is outside the Employer’s authority
expressly granted by article 6.1 of the collective agreement limited “to make and apply
reasonable rules and regulations” (emphasis added). Consequently, I must reject the
Employer’s claim that it had the right to information from the private cellphones of any of
the Grievors, and thus to the extent it purported to discipline Mr. Juteram, in part, for his
failure to fully comply with the Investigator’s demands for screenshots, etc., from his
personal cellphone, I conclude that his discipline at least to that extent was unjust.
[112] The Employer argued that I should find that the WhatsApp chat group consisted of
a potentially large number of individuals because the Grievors did not know who
“Maverick” was (referenced in one of the chats) and they couldn’t or refused to say how
many people were in the group. I rejected that submission because the onus is on the
Employer to prove its claim of a sufficiently wide distribution of the offensive commentary
to have a real negative impact on its reputational interest. The most that I can find on the
15 The text of this provision, in context, is reproduced as part of the relevant provisions of the official WHD Prevention
Policy set out earlier in these Reasons.
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evidence before me is that there were eight individuals involved in the group: namely,
Messrs. Juteram, Edson Pelley, Sousa, Radovic, Alrusheidat, Missen and the person
identified only as “Maverick”. To accede to the Employer’s submission would be to
presume or speculate on an important consideration in determining the Employer’s public
reputation interest in this case.
[113] Unlike the situation in Canada Post Corp., supra, where the grievor’s derogatory
and mocking statements about her supervisors were transmitted via her Facebook page
to more than 50 of her “friends” that included a number of coworkers, and the
circumstances in Saskatchewan (Ministry of Corrections, Public Safety & Policing), supra,
where the disparaging posts were sent to a Facebook Group consisting of at least 19
coworkers and 36 people from outside the workplace, thereby substantiating the
employers’ legitimate reputational interest in the matter, I can only find on the evidence
before me that the WhatsApp chat group had eight identified members, all of whom
believed they were communicating amongst themselves only, through a private social
media outlet that was not available to the general public, and which they did not transmit
nor intend to come to the attention of any of the people who they mentioned in their
communications. (That even applied to Mr. Juteram who, as the evidence shows, did not
forward the offensive commentary to Ms. A, who refused to identify the person that did.)
In such circumstances, I conclude the Employer has failed to satisfy its onus to prove a
real, as opposed to speculative or hypothetical, reputational interest at stake, justifying its
authority to intrude on what I find to have been private electronic conversations among
friends.
[114] If Mr. Juteram had hosted a backyard bar-b-que with his colleagues, Messrs.
Edson, Pelley, Sousa, Radovic, where all of the inappropriate comments reflected by the
Agreed Statement of Facts had been exchanged in the course of their discussions, there
would be little doubt that their conversations would be considered “private” as between
themselves, and thus outside of the reach of the Employer’s authority to discipline. That
is accepting, without necessarily finding, that the offensive comments by the Grievors
would constitute a form of sexual harassment if made in the workplace during working
hours.16
[115] Then, when one recognizes that in today’s reality people likely communicate more
frequently through one of many on-line social media via their personal cellphones than
they do in direct face-to-face and real time telephone contact with each other, it is my
opinion, based on the evidence before me that shows the WhatsApp chat group to have
been a relatively small assortment of colleagues, communicating through an encrypted
medium that they reasonably believed and intended to be private amongst those
individuals (and perhaps others on which I had no evidence to be certain about), while
off-duty and outside of working hours, I conclude there is no practical difference
introduced by their use of the WhatsApp electronic medium to suddenly give the Employer
16 It may well be that disparaging comments made by one person to a group of others might be grounds for the
disparaged person to seek personal recourse for proven damage to his/her reputation applying the law of defamation,
which in present context is an individual’s (as opposed to the Employer’s) right, that is not before me in the instant
case; particularly where neither Ms. A, nor any of the other people mentioned by the Grievors in their various isolated
chats, raised any individual complaint about their comments.
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any standing to censure and/or discipline those employees for their words amongst
themselves, as repugnant as they may be.
[116] In the circumstances presented by the evidence before me, I therefore conclude
that at least in the case of Messrs. Edson, Pelley, Sousa and Radovic,17 where the only
evidence of alleged wrongdoing came out of a “fishing expedition” (that I will elaborate
upon later) to look for misconduct contained within Mr. Juteram’s cellphone instead of
reacting to a specific complaint under the Employer’s policies, the Employer had no
authority to intrude upon their private electronic exchanges in screenshots that the
Employer improperly obtained through what amounted to threats of discipline to Mr.
Juteram for refusing to submit fully to the Investigator’s demands for copies of the
offensive conversations from his personal cellphone, that were otherwise inaccessible to
any employees outside of the chat group or to the general public.
(d) The impact of the communications was not “manifest within the workplace”
[117] While the foregoing conclusions remove all of the private electronic conversations
between Edson, Pelley, Sousa and Radovic outside of any “public” forum giving the
Employer legitimate grounds for concern over its “reputation” to justify any disciplinary
reaction over what amounts to the private conversations of those individuals, there is a
second fundamental deficiency in the Employer’s conclusion that through their off-duty
conduct all of the Grievors (including Mr. Juteram) committed acts of sexual harassment.
[118] In concluding that the Grievors had committed acts of sexual harassment in
violation of the Employer’s WHD Prevention Policy, the Investigation Report states that
the offensive words used in each case exhibited “a course of vexatious comment against
a worker (or former worker) within the scope of the workplace and the respondents ought
reasonably to have known that these comments would be unwelcome”, which was
sufficient from the Investigator’s understanding to establish sexual harassment in the
workplace. Her use of the phrase, “within the scope of the workplace” is puzzling as it is
not the same words used anywhere in the Employer’s WHD Prevention Policy, or in the
arbitral jurisprudence in defining workplace sexual harassment.
[119] Rather, in the Employer’s three-page summary of its WHD Prevention Policy used
for training purposes, the Employer warns employees that its “ZERO tolerance stance
on harassment and discrimination” (capitalization and bolding in original) extends to “All
Metrolinx workplaces” that includes “Harassment and discrimination which occurs
outside the workplace but which is having a negative impact within the workplace
(e.g., social media or work group chats)” (bolding in original). Under the express terms
of the WHD Prevention Policy itself, as published by the Employer’s “Corporate Human
Resources” updated to May 15, 2018, which is the documentation the Union would
reasonably be aware of through its employees as of the renewal date of the collective
agreement in effect when the Grievors were terminated, employees are told the WHD
Prevention Policy “also covers harassment and discrimination which occurs outside the
17 I have excluded Mr. Juteram from this list because unlike the other Grievors, his comments were forwarded to Ms.
A by an unknown “friend”, which applying but not necessarily agreeing with the obiter in Saskatchewan (Ministry of
Corrections, Public Safety & Policing), supra, was a risk that triggered the Employer’s legitimate interest that might
expose Mr. Juteram to possible discipline (notwithstanding he didn’t intend the disclosure).
- 54 -
workplace but which is having a negative impact within the workplace” (emphasis
added) as well as “harassment and discrimination through social media where it is
established that the impact of the harassment and/or discrimination is being
manifested within the workplace” (emphasis added).
[120] While the Investigator asserted in her Report that the “course of vexatious
comment against a worker (or former worker) within the scope of employment” occurred
in each case, she does not specifically find that those comments had “a negative impact
within the workplace” or were “being manifested within the workplace”, which is part of
the Employer’s own express definition of workplace sexual harassment arising out of off-
duty words conveyed via social media. In that regard, the Employer’s definition of sexual
harassment in the WHD Prevention Policy is consistent with the arbitral jurisprudence
reviewed above. That jurisprudence establishes that to sustain discipline for off-duty
words constituting a course of vexatious comment that was known or ought to have been
known unwelcome (thereby satisfying the first part of the test of sexual harassment), the
Employer must also “show there is a real causal connection between the events that
occurred when the employee was not on duty and the efficient operation of their
businesses” (per Canadian Labour Arbitration, 5th ed., supra, at para. 7:15).
[121] However, in her Investigative Report, the Investigator does not comment upon this
essential second element of the offence of sexual harassment to bring it within the
Employer’s jurisdiction when it arises out of off-duty comments via social media outside
of the workplace. The obvious reason for that deficiency, is because there was no
evidence before the Investigator establishing a negative impact of the vexatious words
“being manifested in the workplace”.
[122] Having carefully read the parties’ extensive “Agreed Statement of Facts”, and
cross-referenced those fact to the documentary evidence filed by the parties, with the
exemption of Ms. A (considered separately below) there is absolutely nothing to suggest
that any of the current and former employees mentioned by Messrs. Edson, Pelley, Sousa
and Radovic, who are identified in these Reasons by their pseudonyms of “Ms. B, C, Ms.
D, Mr. E, Mr. F, Ms. G and Ms. H” had any reaction to the offensive WhatsApp chats.
Unlike the situation in Tenaris Algoma Tubes Inc., supra, where the evidence before the
arbitrator was that the woman identified as “X” experienced demonstrable distress when
she found out from her coworkers who received the vexatious Facebook posts, which the
arbitrator determined the grievor intended “X” to find out about leading to the conclusion
that the grievor’s conduct “was directed at poisoning X’s work environment”, no such
evidence to any degree was provided by the parties before me in connection with the
impact of the offensive chats on Ms. B, C, Ms. D, Mr. E, Mr. F, Ms. G and Ms. H. Nor was
there even the indication that any of those individuals ever knew that their names had
been mentioned by any of the Grievors in the course of their WhatsApp communications.
(This is even assuming, on which I have considerable doubt, that the reaction of any
former employee who was no longer in the workplace could have any relevance to the
Employer’s legitimate concern over such off-duty misconduct through social media
affecting the present workplace.)
[123] Thus if I am wrong in my earlier determination that by communicating privately
through the WhatsApp program the Grievors brought themselves outside of the
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Employer’s legitimate authority to discipline them for off-duty misconduct, on the evidence
before me, or really lack of evidence, I can only conclude that the Employer has failed to
satisfy the second fundamental element in proving the offence of sexual harassment
arising out of the comments made outside of work by at least Edson, Pelley, Sousa and
Radovic, consistent with the arbitral jurisprudence and as mandated under the Employer’s
own WHD Prevention Policy, requiring the Employer to establish that the alleged off-duty
misconduct is “having a negative impact within the workplace” and/or “is being
manifested within the workplace”, creating a “hostile” or “poisoned” work environment
for any of them. Without sufficient (or in the present case any) evidence to support that
finding in connection with Ms. B, C, Ms. D, Mr. E, Mr. F, Ms. G and/or Ms. H, the Employer
has failed to satisfy its onus to prove sexual harassment affecting the workplace, leading
to the result that the grievances against at least Edson, Pelley, Sousa and Radovic must
also be allowed for that reason alone.
[124] The factual circumstances in Mr. Juteram’s case require additional considerations
(although much of the foregoing analysis also applies). The evidence establishes that as
part of the WhatsApp chat group, Mr. Juteram had a reasonable expectation of privacy
when he made the inappropriate comments referenced above to the other members of
the chat group sometime in September 2019. Those comments were forwarded as
screenshots to Ms. A from an unknown person’s cellphone, who certainly was not Mr.
Juteram (who, on the Agreed Facts, did not intend for Ms. A to know about his comments).
Ms. A knew the name of the person who forwarded the screenshots to her, but refused
the Investigator’s requests to disclose that name. Ms. A discarded the offensive
screenshots from her cellphone, and thus she could not recall the “exact comments” when
contacted by the Investigator except for remembering she heard someone say
“something to the effect of ‘they look cozy together’, in reference to her and Gordon
returning to the Streetsville Garage at the end of the night shift September 2019”. When
specifically pressed by the Investigator about the contents of the screenshots, “she
recalled one message attributed to Juteram said something to the effect of ‘[Ms. A] went
down on her knees to get the acting supervisor job’, which upset Ms. A at the time.
[125] To the extent the Investigator later obtained the offensive screenshots from Mr.
Juteram’s personal cellphone containing additional inappropriate words, which as I have
found above was his private property that the Investigator had no right to demand,
particularly when obtained in the context of threatening discipline for non-compliance with
her insistence, it is my view improper to rely upon any of that information. Since an
arbitrator has discretion to control the process before the tribunal that includes the ability
to determine what evidence to accept even if inadmissible in a court of law (per section
48(12)(f) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended), I
gave the contents of the screenshots improperly obtained from Mr. Juteram’s personal
cellphone, little if any consideration. In my view, when confronted with evidence that is
the fruit of an improper search of an employee’s private property without authorization,
and in violation of the collective agreement as I have found in this case, an arbitrator
should not permit the Employer to benefit from its own malfeasance.
[126] However, if I am wrong in doing so, it makes no difference to my ultimate
determination in the matter. On the totality of the evidence, including the improperly
obtained screenshots from Mr. Juteram’s private cellphone, Ms. A made it clear at the
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outset from her discussions with her manager, Mr. Korey Gordon and supervisors,
Kristine Lang and Richard Allen that she would not file a complaint of sexual harassment,
and aside from the evidence of her “getting emotional” (without elaboration) when she
first saw the messages forwarded by an unidentified “friend”, there is nothing before me
to support the conclusion that Ms. A believed the words she either heard in the course of
the September 22 – 23, 2019 shift or read on her cellphone led her to fear in her ongoing
employment that she was the victim of sexual harassment and/or to believe she was
experiencing a hostile or poisoned work environment. Rather, her consistent conduct
afterwards leads to the opposite conclusion.
[127] The parties dedicated some 16 paragraphs (#5 - #22) of their Agreed Statement
of Facts to the WHD Prevention Policy and the extensive training of its personnel in that
policy (including a video message from the Employer’s CEO), to lead me to infer that had
manager Gordon and supervisors Lang and Allen (along with Mr. Gordon’s superior, Mr.
Wipperman who was immediately consulted), detected anything in Ms. A’s demeanor or
reaction to the screenshots indicating that the words in the screenshots had created a
hostile work environment for her (as opposed to being merely “vulgar” in Mr. Gordon’s
mind) they would have taken immediate action to report the matter, as required under the
clear terms of the WHD Prevention Policy and having regard to their extensive training
on the Policy.
[128] Instead, it is clear from the Agreed Statement of Facts and supporting documents,
that the only source of Ms. A’s “stress” described to the Investigator (many months later
when the Investigator contacted her in April and July of 2020) was the investigation itself
that the Investigator chose to disregard, notwithstanding the absence of a clear
“Complainant” and written complaint before the Investigator (which is another problem
with the Employer’s application of the WHD Prevention Policy considered later in these
Reasons).
[129] Nothing in the Agreed Statement of Facts indicates Ms. A’s stress had anything to
do with the isolated screenshots received on September 23, 2019 and quickly discarded.
Nor did she tell anyone that her brief exposure to the screenshots had caused her to feel
she was working in a negative or hostile environment, but rather she continued to work
undaunted. I am asked by the Employer to infer or speculate a negative impact on Ms.
A’s ongoing employment of briefly seeing the inappropriate screenshots sent to her by an
unidentified “friend” and having been “emotional” as a result, which is a fundamental
element in satisfying the Employer’s burden of proof in this case, which it hasn’t achieved.
Rather, relying on Ms. A’s pronouncement at the time that she wouldn’t file a complaint
of sexual harassment, which she told the Investigator had not caused her to experience
any stress, along with her refusal to cooperate with the Investigator’s demands for
information, leads to the conclusion that she didn’t believe the screenshots negatively
impacted her employment and was content to move on.
[130] I therefore find on a balance of probability standard that the Employer has failed to
satisfy the essential second element in the test for sexual harassment arising out of the
screenshots of Mr. Juteram’s off-duty comments by establishing, in the words of the WHD
Prevention Policy, that they manifested “a negative impact within the workplace”.
Consequently, the Employer had no grounds to discipline, let alone terminate Mr. Juteram
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in the circumstances and, given my earlier findings on the illegitimacy of disciplining Mr.
Juteram for refusing to fully comply with the Investigator’s demands for more access to
his personal cellphone data, his grievance must also be allowed in its entirety.
(e) The Employer didn’t follow its own policy and procedures
[131] However, if I am wrong in any of the foregoing conclusions, there are additional
reasons for allowing the grievances arising out of the Employer’s failure to follow its own
“reasonable rules and regulations” (to quote from its obligation in article 6.1 of the
collective agreement) under the WHD Prevention Policy, having more than mere
procedural significance, but rather ignored a number of its mandatory terms including
express time limits, which undercut the legitimacy of its disciplinary actions against the
Grievors.
[132] The seminal case of Re KVP Co. and Lumber and Sawmill Workers’ Union, Loc.
2537 (1965), 16 L.A.C. 73 (Robinson) (Ont. Arb.), affirms an employer’s right to
unilaterally impose rules of conduct (even without the grant of such authority in the
collective agreement itself) provided the rules are: (1) not inconsistent with the collective
agreement, (2) not unreasonable, (3) clear and unequivocal, (4) brought to the attention
of the employee affected before acted on, (5) that warn the employee of the possible
consequences of discharge from a breach of the rules, and (6) are consistently enforced
by the employer from the time it was introduced (at p. 85). On the evidence submitted, I
conclude the Employer’s application of the Policy was neither reasonable nor consistent
with its clear terms, some being so fundamental as to vitiate the Employer’s later actions
in the name of that Policy.
[133] When the Employer publishes its “rules and regulations” to be observed by its
employees, it constitutes notice to the employees and through them their Union, that the
Employer intends to consistently follow those rules which the Union may rely upon in
negotiating amendments to the parties’ collective agreement. In promulgating rules
prohibiting and designed to establish the protocol for investigating alleged workplace
harassment, the Employer must comply with section 32.0.1(b) of the OHSA by “preparing
a policy with respect to workplace harassment” (reviewed at least annually) and “in
consultation with the health and safety committee” the Employer is required to “maintain
a written program to implement the policy with respect to workplace harassment”
mandated by section 32.0.6 of the OHSA.
[134] The “written program” in this case is the Employer’s WHD Prevention Policy18
setting out a comprehensive process for receiving and handling complaints of workplace
discrimination and harassment, including sexual harassment, which must be reviewed
annually with representatives of the workplace Joint Health and Safety Committee
(“JHSC”) in accordance with article 11.13 of the collective agreement, mandating the
18 As noted above in the review of the facts, the parties filed both a summary of the WHD Prevention Policy (which
was distributed to employees and used in the training process, along with the actual (official) Policy itself, which is a
13-page document that is an official publication of the Employer’s Human Resources department. Since these two
documents contain at least one important difference that I will review later in these Reasons, for purposes of
determining whether the Employer complied with the substantive and procedural terms of the WHD Prevention Policy,
I have focused my analysis on the official Policy statement as published by Human Resources.
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participation of Union appointed representatives.19 The WHD Prevention Policy is
established through a collaborative process, required by statute to ensure that the JHSC
has real input into its terms, which the Employer cannot choose to ignore or change in its
sole discretion. The Policy itself is also authorized but limited under article 6.1 of the
collective agreement within the Employer’s “Management Rights” to “make and apply
reasonable rules and regulations to be observed by employees”, thereby qualifying
the Employer’s rule-making authority as well as the application of its rules by an objective
standard of reasonableness.
[135] None of this seemed to matter to the Investigator, who unilaterally altered a
number of clear procedures mandated by the WHD Prevention Policy that had been
established through the consultative process between worker and management
representatives in accordance with the OHSA and the collective agreement, without any
evidence to indicate she consulted with the JHSC and/or Union to presume to have that
right. On the evidence presented to me, I find that the Investigator’s application of the
rules established by the WHD Prevention Policy was unreasonable from the beginning to
the end of the process, thereby constituting a breach of the Employer’s obligation under
article 6.1 of the collective agreement, for the following reasons.
• The mandatory time limits were ignored
[136] First, a key element of the procedures in the WHD Prevention Policy is an
adherence to the “timeliness” of every step in the process. Under the heading, “Policy
Statement”, the Employer has committed to “take every reasonable step to…identify and
eliminate harassment and discrimination in a timely manner” (emphasis added). The
“Purpose” of the Policy includes the goal of establishing, “a process for reporting,
investigating, and responding to complaints of harassment and/or discrimination in an
effective and efficient manner”, and in describing the “Roles and Responsibilities” of
employees and managers, the Policy states in mandatory terms that “all employees
shall…report immediately all complaints or incidents of workplace harassment and/or
discrimination experienced, witnessed or to which he/she has knowledge of to” (among
others) “HR Service”, and that “all Managers shall…promptly report all complaints or
incidents of workplace discrimination and/or harassment received to a Human
Resources representative…” (emphasis added)20 which further stipulates that once a
complaint is received by a Manager or Human Resources, “the complaint will be
forwarded to an Employee Relations Consultant within 48 hours of receipt” (emphasis
added).
19 Article 11 of the parties collective agreement, entitled “Health and Safety” sets out comprehensive obligations of
the parties to establish their Joint Health and Safety Committees with composed of representatives of employees from
different areas of the Employer’s operation, which I need not reproduce for purposes of this Award except to note
that, in accordance with the OHSA, the Union’s participation is central to the development and annual review of the
“policy with respect to workplace harassment” required in compliance with section 32.0.1(b) and 32.0.6 of the OHSA.
20 Later in the WHD Prevention Policy, in outlining the timelines for the investigation of a complaint of discrimination
and/or harassment under the heading, “Investigative Process”, the Policy states that it may be necessary to change or
revise the process to ensure the investigation is appropriate to the specific circumstances, which helps solidify my
opinion of the mandatory nature of the time limits required by the complainant and managers in processing a
complaint, where there is no reservation of flexibility in the Policy itself.
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[137] The express use of the words, “shall” and “will” in the context they appear in the
foregoing excerpts denote the mandatory nature of the time-limits which were not
followed. The evidence before me indicates that Ms. A received the offensive screenshots
from an unidentified “friend” identifying Mr. Juteram as its author in the course of her
overnight shift (with Mr. Gordon) ending in the morning of September 23, 2019. She told
Mr. Gordon and two other supervisors who agreed not to report it further at Ms. A’s
request (and after Mr. Gordon consulted with his superior). In my view, the knowledge of
the managers must be attributed to the Employer itself, with the effect that the Employer
waived its ability under the Policy to proceed further, which should have been the end of
the matter under the Policy’s terms. The initial “incident” didn’t come to the attention of
Human Resources until seven months later, and then only accidentally in the course of
another investigation involving Mr. Gordon.
[138] This kind of delay, contrary to the mandatory timelines in the Policy, was inherently
prejudicial to the Grievors, with at least Messrs. Edson, Pelley, Sousa and Radovic
asserting they couldn’t remember the circumstances surrounding the screenshots of their
brief comments received via Mr. Juteram’s cellphone, which by the time they were
confronted with allegations of sexual harassment in the summer and early fall of 2020,
was in most cases more than one year after the alleged inappropriate off-duty comments.
But, instead of taking that delay into account in assessing the reliability of the statements
made by the Grievors, the Investigator concluded their claims of not remembering the
impugned incidents undermined the Grievors’ credibility, to the extent they could provide
any information at all.
[139] It is evident that the central purpose of the mandatory timelines in the WHD
Prevention Policy is to ensure that, (a) allegations of this nature are immediately dealt
with (so they do not fester in the workplace); (b) to promote what the Policy instructs is to
be “a fair and impartial investigation” of the matter (discussed later in these Reasons); (c)
while memories are relatively fresh. By disregarding those mandatory timelines, the
Investigator put the Grievors in the unfair position of having to answer allegations of
sexual harassment long after it was reasonable to expect them to remember what
amounted in most cases to isolated and brief cellphone WhatsApp text messages more
than one year earlier. This, in my view, cannot be described as being within the
reasonable application of a “fair and impartial investigation”, but rather was demonstrably
prejudicial to the Grievors’ practical ability to defend the serious charges of sexual
harassment affecting or manifest within the workplace.
• The discretionary timelines in the investigative process were unreasonably applied
[140] Second, and related to the timeliness deficiencies compounding the obvious
prejudice to the Grievors, under the heading “Timeliness Concerning Receipt of
Complaint” the WHD Prevention Policy expressly instructs the “Complainant”, again in
mandatory terms, that he/she “must file his or her complaint promptly and without delay
i.e., as soon as reasonably possible following the alleged event(s) or incident(s) giving
rise to the complaint”, and it goes on to articulate Employer’s expectation that, “A delay
in filing a complaint may affect Metrolinx’s ability to conduct an effective investigation”,
which is tacit recognition of the unfairness that any unreasonable delay might cause.
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[141] Under the heading, “Investigative Process”, while permitting some flexibility with
the proviso that, “For each individual complaint, it may be necessary to change…the
process to ensure the investigation is appropriate to the specific circumstances”, the
Policy then states that the Investigator “will, as soon as practical, and normally within
one week of the filing of the complaint, meet with the Complaint to explain the
investigative process, to clarify the complaint and to obtain the Complainant’s evidence
relevant to the complaint” (emphasis added). The Policy directs the Investigator to
“provide the Respondent with a summary of the Complainant’s allegations prior to
meeting with him or her” that “where practical” is to occur “a minimum of three business
days to reflect and review upon the allegations before being interviewed with
respect to the complaint” (emphasis added), and then to meet with the Respondent,
“as soon as practical to explain the investigation process and to obtain the Respondent’s
evidence relevant to the complaint.” The Employer is then committed to “endeavour to
have an Investigative Report completed within three months of the date that the
complaint was filed” (emphasis added), while nevertheless providing some flexibility
where, “depending on the complexity and specific circumstances of an individual
complaint/investigation a longer timeframe may be required”.
[142] Even accepting that the timelines for the Investigative Process permit the
Investigator some flexibility to complete the various investigative steps enumerated by
the Policy (which is not expressed in the same mandatory terms as the requirements
imposed on the Complainant and manager to report a complaint the WHD Prevention
Plan), those timelines are measured in terms of days to normally up to three months when
the Employer has endeavoured to complete the Investigative Report, which then triggers
the ability of the Respondent to ask for “reconsideration” of the of the results of the
investigation within 45 calendar days of receiving written notice of the results of the
investigation” (emphasis added).
[143] On the evidence before me the investigation did not begin until seven months after
the incident giving rise to the genesis of the complaint, with most of the investigative
interviews not completed until one year had passed, while the Investigative Report was
delayed until December 19, 2020 (i.e., some 15 months post-incident) that, for unknown
reasons (not addressed in the Agreed Statement of Facts) languished until April 27, 2021
(i.e., some 19 months post-incident), when it was provided to the Grievors who were then
promptly terminated on April 30, 2021 (in the case of Juteram, Edson and Radovic) and
on May 3, 2021 (for Pelley and Sousa), foreclosing the opportunity of any of these
Grievors to request the reconsideration of the results of the investigation within 45 days
of its receipt, which was their right under the WHD Prevention Policy. Given that the
Grievors were employed throughout the 19-month period from the time the Employer
(though its managers) first became aware of the incidents of alleged sexual harassment
in September 2019 until providing its Investigative Report to the Grievors, with no
evidence before me to suggest any misconduct or deficiencies in their performance during
that entire time, there was no demonstrated urgency to deny the Grievors any chance of
appealing the Investigator’s findings within 45-days, permitted under the Policy. The
obvious inference is that no “reconsideration” would have mattered to the Employer
anyway, as it had irrevocably made up its corporate mind in spite of any right to
reconsideration.
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[144] While recognizing there is flexibility built into the timelines set out in the Policy
related to the investigative process, the Investigator’s decision to increase the timelines
in that process normally measured in a matter of days to three months, to the almost two
years it took to complete the investigative process in the present case, is in my opinion
so grossly inconsistent with the expectations under the WHD Prevention Policy, that such
delay represented an unreasonable application of the terms in the Policy, contrary to the
limitations on the Employer’s rule-making authority under article 6.1 of the collective
agreement. Since these time-limit violations are more than simply procedural or merely
directory in nature, but rather where I have found that the excessive delay was prejudicial
to the Grievors’ efforts to defend the charges of sexual harassment, all of the grievances
must also be allowed on that ground alone. The Employer cannot publicize a Policy
prepared in consultation with the Union mandated under the OHSA and collective
agreement, and then blatantly ignore important procedural protections of that Policy with
impunity. To do so would be a mockery of the consultative process.
• The Employer could not substitute itself as Complainant when Ms. A refused
[145] Third, the Employer submits that it had the right to substitute itself as the
Complainant under the WHD Prevention Policy when Ms. A refused to file a complaint
and cooperate with the investigation, which I respectfully reject as being contrary to any
reasonable reading of the terms of the Policy itself.
[146] In the definition section of the Policy, the “Complainant” is expressly identified as
“The person, or persons, making the complaint”. The Respondent is defined as, “The
person or persons who are identified by the Complainant, as the perpetrators of alleged
wrongdoing”. And, most importantly, the “Investigator”, who “will normally be an
employee of Metrolinx, but depending on individual circumstances, Metrolinx may, in its
discretion, retain a qualified, external investigator to conduct the investigation” is
described as being responsible for “conducting a fair and impartial investigation of
the complaint (emphasis added). Under the heading, “Initiation of a Complaint”, the
investigative process “is initiated by a complainant in writing filed by the Complainant with
his or her immediate Manager”, with the subsequent requirement (under the heading,
“Timeliness Concerning Receipt of Complaint”) that, “An employee must file his or her
complaint promptly and without delay” (emphasis added). In describing the role of the
Investigator, the Policy later states:
An investigator must act in a fair and impartial manner. A key part of the investigator’s role is
to interview the parties to a complaint, interview relevant witnesses, consider the evidence and
make findings of fact as to what did or did not occur. These findings of fact, in turn, will allow
for a determination as to whether harassment and/or discrimination in the workplace
occurred, as well as whether or not any other misconduct or inappropriate behaviour occurred.
[Emphasis added]
[147] There is nothing in the WHD Prevention Policy that expressly or inferentially
recognizes the Employer itself (referred to as “Metrolinx”) as a potential “Complainant”
under the terms of the Policy.
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[148] Nonetheless, I am asked by the Employer to accept Metrolinx as the “Complainant”
in the present case under the terms of the WHD Prevention Policy, which I find the
wording of the Policy, considered as a whole and in context, does not support. In
determining the meaning of language in a written instrument (which extends to the Policy
before me), the words are to be read in their entire context, in their grammatical and
ordinary sense, harmoniously with the scheme of the document as a whole, unless to do
so would lead to some absurdity or inconsistency with the rest of the document or the
context reveals that the words are used in some other sense, and where there is no
ambiguity or lack of clarity in meaning, effect must be given to the words used
notwithstanding the effect might be unfair or oppressive. Per the discussion in Canadian
Labour Arbitration, 5th ed., supra, at para. 4:20 and 4:21.
[149] Applying the plain meaning to the words in the Policy, the word “Complainant”
clearly refers to a living person (not a corporate entity), which is consistent with the
requirement in the Policy that “an employee must file his or her complaint promptly and
without delay”. By using the word “an employee” the Policy is also limiting application of
the investigative process under the Policy to individuals who at the time of the Complaint
are in an active employee-employer relationship, such as Ms. A for example, thereby
denying any standing to “former employees”, such as Ms. B and Mr. F to invoke the
procedures under the Policy, who the Employer in the present case purported to include
as “victims” with the ability to complain about improper off-duty comments through social
media by the Grievors, which in my view was an erroneous interpretation of the scope of
its reach.
[150] The interpretation of the “Complainant” as an employee in an active employment
relationship with the Employer at the time of filing the complaint is also most in harmony
with the definition of the Investigator “who will normally be an employee of Metrolinx” with
the express obligation to act “in a fair and impartial manner.” To accept that the
Complainant under the Policy can be the Employer, Metrolinx, where the Investigator is
also a Metrolinx employee, which is what occurred on the facts of the present case, was
to effectively put Ms. Castillo who was assigned as the Investigator in the same role as
representative of the Complainant, creating a clear conflict of interest. Such an obvious
conflict is the antithesis of “impartial” which cannot have been the intention of the
consultative parties (i.e., Employer and Union) when the WHD Prevention Policy was
adopted. Recognizing the inherent conflict in the Complainant and Investigator being the
same person, the Employer (via its “Consultant”) might have selected an independent
third-party as Investigator, which it had the option of appointing under the terms of the
Policy but chose not to. Thus, on the facts before me I conclude the purported assignment
of Ms. Castillo in the role of Investigator while the evidence shows that she was also
acting in the role of representative of the Employer as Complainant, was contrary to the
terms of the WHD Prevention Policy and thereby invalid. When Ms. A declined to file a
complaint of sexual harassment arising out of the September 2019 screenshots and no
other active employee would, that also should have been the end of the matter.
• What should have been an “inquiry” became a “fishing expedition”
[151] But, as revealed by the evidence in the present case, once the Investigator’s role
was merged with that of the Employer as Complainant, instead of being an inquiry into
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specific allegations of sexual harassment within the explicit procedural safeguards set out
in the WHD Prevention Policy to ensure a “fair and impartial investigation”, I find that the
Investigator presided over what amounted to a “fishing expedition” with her insistence on
the disclosures of communications from Mr. Juteram’s private cellphone data, that was
then used to find a case against Messrs. Edson, Pelley, Sousa and Radovic, for using
inappropriate words while communicating amongst themselves, who were never
mentioned by Ms. A or other active employees as Respondents to any allegation of sexual
harassment. And, there was no evidence that the current and former employees found
to have been mentioned by those latter four Grievors, namely Ms. B, C, Ms. D, Mr. E, Mr.
F, Ms. G and Ms. H, had any knowledge of the matter, thereby undermining any sense of
the off-duty words having a negative impact on them, manifested in the workplace.
[152] In the arbitral jurisprudence the term “fishing expedition” is usually raised in the
context of the request for an order for production of documents, which arbitrators have
traditionally denied where it is being used “to discover whether (a party) has a case to be
pursued or a defence to be mounted’ (per Arbitrator Surdykowski in Laurentian University
(Board of Governors) v. Laurentian University Faculty Assn. (Galiaro-Riveros Grievance),
[2011] O.L.A.A. No. 660 (Ont. Arb.) at para. 28, in contrast to the disclosure of documents
that are “arguably relevant” to the specific allegations raised by the proceedings between
the parties. In the context of the present case, the same meaning of fishing expedition
applies to the Investigator conduct in turning what should be a “fair and impartial” inquiry
into an expansive inquisitional search for wrongdoing, rather than being a demand for
evidence related to specific allegations of misconduct by at least Messrs. Edson, Pelley,
Sousa and Radovic as explicitly itemized in the Complaint. In my view, the Investigator’s
action of expanding the inquiry into a search for people who had used certain “keywords”
amongst themselves21 in order to identify individuals to later charge with the serious
offence of sexual harassment, constituted an unreasonable application of the WHD
Prevention Policy contrary to article 6.1 of the collective agreement.
[153] As a result, I find there is no proper “Complainant” and, to the extent the Grievors
were terminated as a result of the process under the WHD Prevention Policy that I have
found to be contrary to “a fair and impartial investigation”, the many violations of that
Policy invalidated any action taken the Employer in its name.
(f) The “zero tolerance” stance was unenforceable
[154] This leaves me with the fourth and final question to be determined in addressing
the parties’ submissions on the enforceability of the “zero tolerance” stance taken by the
Employer in this case.
[155] On the evidence presented by the parties it is clear that the Employer applied its
“zero tolerance” stance in the sense of imposing the penalty of automatic dismissal for
any form of discrimination and harassment, including sexual harassment, found by its
Investigator to have occurred in the workplace (or negatively manifest in the workplace).
21 I am referring here to the Investigator’s “Keyword Search”, filed in these proceedings, that focused on the use of
the following words by members of the chat group: “Blow Job” (4 instances), Ms. A (8 references), “On Her Knees”
(1 example), “Suck Cock” (6 instances) and “Suck Dick” (9 events). (The Investigator also searched for the words,
“Slept with the Boss”, “Sleeping with the Boss” and “Fucked the Boss” which didn’t render any “hits”.)
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As a result, within days after the release of the Investigative Report on April 27, 2021, all
five Grievors were summarily terminated, with no opportunity to file for “reconsideration”
under the WHD Prevention Policy. In imposing the penalty of discharge for each Grievor,
there was no evidence to suggest the Employer gave any regard to the nature and extent
of the alleged malfeasance, the considerable passage of time from the date of the alleged
misconduct (which in some cases amount to two years), or the seniority and clear
disciplinary record of the Grievors.
[156] Moreover, having carefully reviewed all of the documents submitted to me, it is
clear that no “zero tolerance” in the sense of automatic termination for sexual harassment
affecting the workplace to any degree appears as part of the WHD Prevention Policy. In
the 13-page version of the “official” Policy produced by the Employer’s Corporate Human
Resources, the words “zero tolerance” do not appear anywhere. Instead, while the Policy
states that “the Investigative Report must indicate whether or not harassment or
discrimination occurred”, it contemplates a remedial response short of dismissal. For
example, under the heading “Implementation of Recommendation”, the Policy states, “It
is normally the responsibility of the Manager(s) to implement and enforce the corrective
actions and/or other recommendations, where applicable, identified in the investigative
report” and continues that, “The Manager(s) will monitor the situation and the continued
well-being and behaviour of both parties for a minimum of six months following resolution,
and longer if necessary, to ensure that the measures to stop the discrimination
and/or harassment have been effective” (emphasis added). This language would
make no sense if the Employer’s zero tolerance stance establishes a penalty of automatic
termination for any act of discrimination and/or harassment, including sexual harassment,
to any degree. And, while the three-page summary of the WHD Prevention Policy states
that, “In line with our ZERO tolerance stance on harassment and discrimination, violations
of the WHD Policy will result in substantive sanctions up to and including termination”
(emphasis added), the use of the words “ZERO tolerance” in that context denote a range
of potential sanctions “up to and including termination”, which does not foreclose
something less than termination.
[157] Thus, in every case the WHD Prevention Policy requires a determination of the
appropriate remedy for acts of discrimination and harassment, including sexual
harassment, requiring an assessment of all of the usual surrounding factors listed in the
arbitral jurisprudence for settling on the appropriate penalty, which includes such
considerations as: years of service, disciplinary record, the recognition of wrongdoing,
an apology for the misconduct, absence of intent to forward the WhatsApp messages
outside of the chat group, among others. See, for example, the range of considerations
that apply in mitigating very serious acts of misconduct in Re Levi Strauss & Co. and
Workers United Canada Council (Grievance of Gerald Brown), supra, at paras. 200 –
212.
[158] Yet I was provided with no evidence indicating that the Employer gave any thought
to a response other than automatic dismissal, which is contrary to the principle that part
of the test for “just cause” is that “the penalty must fit the crime” (discussed in Re Ontario
(Ministry of Community Safety and Correctional Services) and OPSEU (Lunario), supra,
at para. 38). Nor was there any evidence of the proper consideration of the mitigating
circumstances readily apparent on the facts presented, as part of determining the
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appropriate penalty in each case. Had that occurred, it is my opinion that a proper
consideration of all of the circumstances and mitigating factors would not have justified
discharge for any of the Grievors on the facts before me, but rather a much lesser penalty
assuming proof of off-duty misconduct via social media amounting to sexual harassment
manifest within the workplace, which I need not determine where the Employer has failed
to discharge its onus to prove sexual harassment having a negative impact in the
workplace by any of the Grievors in this case.
[159] The Employer’s obvious failure to consider the mitigating circumstances in arriving
at a sanction less than discharge for any of the Grievors is another example of the
deficient attention to the Employer’s obligations under the collective agreement and
reasonable application of the WHD Prevention Policy, from the beginning to the end of
the process. As a result, five employees were summarily discharged without just cause,
which has cost each Grievor more than two years without the work they had invested
some 7 to 10 years of acceptable past service, while awaiting the outcome of their
grievances.
* * * * * * * *
[160] Sexual harassment is a serious offence. While employers have the obligation to
protect their workers from sexual harassment in and/or affecting the workplace, they must
also recognize that employees terminated for this offence without just cause nevertheless
suffer the risk of immediate shame and ostracization from former colleagues and friends,
crippling an otherwise commendable reputation that may have taken years to establish,
but which can be shattered in an instant, with the potential of following the employee as
a stain on his/her character through the rest of his/her employment career. That is why,
in cases of this nature, an employer contemplating the discipline or dismissal of an
employee for sexual harassment of a coworker(s) must take care to ensure the discipline
is justified after following the safeguards in its own policies and procedures which the
employer knows or reasonably ought to know could otherwise have a devastating and
permanent impact on the employee’s good name.
[161] Sadly, on the evidence presented, I have found the Employer fell short of its
obligations and standard of reasonable care owed to each of the Grievors in this regard,
pursuing an expansive fishing expedition to discover and then prosecute five employees
engaged in private off-duty communications among a closed group of colleagues and/or
friends via an encrypted social media app through their personal cellphones outside of
working hours. As critical as one might legitimately be of the inappropriate language used
by the Grievors, more akin to adolescent boys than mature men with families that likely
include wives and girls, 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 Grievors’ off-duty communications manifested within the
workplace, which the evidence woefully failed to show.
VII. Disposition
[162] Consequently, the grievances must be allowed.
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[163] For the foregoing reasons I conclude all five Grievors were terminated without just
cause in violation of the collective agreement and are hereby reinstated to their former
positions with no loss of seniority during their absence along with compensation to make
them whole for all monetary shortfalls and benefits of their employment to the date of
reinstatement, plus any associated and/or non-economic damages arising out of the
discharge that were reasonably foreseeable, remitted to the parties for determination.
The letters of dismissal issued to Messrs. Juteram, Edson and Radovic on April 30 2021
and to Messrs. Pelley and Sousa on May 3, 2021 are to be removed from their
employment records forthwith.
[164] As requested by the parties at the outset of these proceedings, I shall remain
seized to resolve any disputes over the interpretation and implementation of this Award,
including the calculation of all appropriate damages.
Dated at Toronto, Ontario this 20th day of July 2023.
“Gordon F. Luborsky”
Gordon F. Luborsky, Arbitrator