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Labour (Ont) - Human Rights. Metrolinx v. Amalgamated Transit Union, Local 1587
In Metrolinx v. Amalgamated Transit Union, Local 1587 (Div Court, 2024) the Divisional Court allowed a Crown employer's JR against the decision of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act, here regarding human rights issues.
Here the court illustrates an example of human rights policy and procedures for a Crown labour employer:[8] The Applicant has developed a framework of policies that are intended to address workplace harassment and discrimination, including mechanisms for the purposes of investigating complaints of harassment and discrimination, and training modules designed to eradicate harassment and discrimination. The Grievors have each participated in the referenced training modules and are, therefore, familiar with the applicable policies which prohibit harassment and discrimination.
[9] The Workplace Harassment and Discrimination Prevention Policy (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”. It “also covers harassment and discrimination which occurs outside the workplace but which is having a negative impact within the workplace” 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”. And while recognizing that harassment may take many forms, it expressly includes “offensive behaviour arising from the use of electronic media, devices and systems”.
[10] In September 2019, the Grievors were engaged in online text communications via a platform called “WhatsApp” on their personal cellphones.
[11] In April 2020, while conducting an investigation into an unrelated matter, the Applicant’s HR department was informed by an employee that a WhatsApp conversation between the Grievors and others contained negative, derogatory and sexist comments about a female employee. These comments made references to a female co-worker, Ms. A, performing sexual favours for career advancement. Ms. A had received screen shots of these messages. Although Ms. A reported these allegations to her supervisor in 2019, she did not file a formal complaint at the time because she did not want the matter investigated.
[12] Once the HR department became aware of these allegations, they were reported to the Employer’s Workplace Harassment and Discrimination Prevention Department for investigation.
[13] Metrolinx commenced an investigation, which was conducted by the Employee Labour Relations Manager, who conducted interviews with each of the five Grievors and other witnesses. During the course of the investigation, the investigator became aware of additional allegations of inappropriate comments allegedly made by other Metrolinx employees in a WhatsApp group chat.
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[24] The investigation was completed on December 19, 2020. Ms. A was the only person referenced in the chats who was interviewed. After completing her investigation, the investigator produced an investigation report on March 10, 2021.
[25] On April 27, 2021, after reviewing the Investigation Report, management determined that the employment of the Grievors should be terminated.
[26] Metrolinx advised each of the Grievors that the investigation had revealed, inter alia, that they had engaged in sexual harassment contrary to the Policy. On April 30, 2021 and May 3, 2021, the employment of the Grievors was terminated for cause.
[27] The Respondent filed grievances on behalf of all five of the Grievors, and the grievances were referred to the Board.
[28] On July 20, 2023, the Arbitrator of the Board (the “Arbitrator”) issued the Decision, finding that the Grievors had been terminated without just cause and that such termination was therefore in violation of the collective agreement. The Arbitrator ordered that the Grievors be reinstated without loss of seniority and be compensated for all monetary shortfalls arising from the termination of their employment.
[29] The issue on the application for judicial review is whether the Board’s Decision to find that the Applicant terminated the Grievors without cause and to order the reinstatement of the Grievors was unreasonable.
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