Employers have a legal duty to eliminate harassment and discipline employees for their conduct, whether it occurs during or outside of work hours.
If a company finds out that a few of its employees made disparaging comments about a co-worker in a private group chat outside of working hours, what obligations does it have? What if the maligned employee refuses to lodge a complaint and wants the incident quickly buried — can the company look the other way?
And what privacy rights do employees have to these ostensibly private communications? Can an employer require them to hand over evidence?
These issues arose in a recent decision of the Court of Appeal for Ontario involving the transportation agency Metrolinx. Five employees had a private WhatsApp chat group in which they sent texts while on their personal cellphones. In the chat, they claimed that a female co-worker had advanced in the company due to her sexual conduct. The chat was inaccessible to anyone outside of the group.
Although the exchange was intended to be confidential, the employee learned of it — as did Metrolinx, which asked the employee if she wished to complain. She did not. She wanted the matter forgotten as quickly as possible.
Metrolinx investigated anyway and demanded copies of the texts from one of the five chat group members, with the threat of discipline if he did not hand them over. It then fired all five workers for cause. Their union filed a grievance.
The court noted that employees can be...
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