Features Legal Off-Duty Conduct Sexual Harassment
Five GO Transit drivers, fired for crude WhatsApp chats, awarded jobs back as arbitrator criticizes biased investigation

Five GO Transit bus drivers in Ontario, who were terminated by Metrolinx for making derogatory and crude sexual comments about their female colleagues in a private WhatsApp group chat, have been reinstated with back pay and no loss of seniority.

These drivers, with a work history of approximately 7 to 10 years at the company, maintained clean disciplinary records up until their dismissal.

The contentious discussions, conducted off-hours on personal devices, contained remarks insinuating that certain female employees had used sexual favors to advance professionally. Additionally, the chat included disparaging comments about a former male executive.

Employer investigation

This issue surfaced after the employer launched an investigation into the matter in April 2020. The HR department was looking into an unrelated matter when an employee mentioned she was told, by a female bus driver, that she had seen screenshots of WhatsApp messages that contained negative comments about her. A formal complaint wasn’t filed because the driver didn’t want the matter investigated.

The text read, based on her recollection, that “she’s sleeping with the boss to get ahead” and a comment to the effect of “she got on her knees to perform a job.”

An investigation was launched. The probe spanned about one year, during which the drivers were asked to share their personal cellphone records. Based on the findings, the drivers were dismissed in late April and early May 2021, aligning with Metrolinx’s policy against workplace sexual harassment.

Grievance filed

In response to the terminations, the drivers filed grievances, arguing their dismissal was unjust. They sought several remedies, including reinstatement and compensation for losses incurred.

Central to the dispute was the nature of the communication. The drivers argued the discussions were private, held outside of working hours, and they believed the WhatsApp platform ensured their comments remained confidential. The debate raised questions about whether private conversations, even if deemed inappropriate, could warrant disciplinary action if they don’t directly impact the workplace.

The ruling

After review, the arbitrator ruled in favor of the drivers. While the language they used was deemed reprehensible, their right to privacy was paramount.

“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,” the arbitrator said, calling social media communication via cellphones “so pervasive that it is very much the contemporary norm.”

Additionally, the arbitrator found that the employer did not consistently follow its own workplace harassment and discrimination policy, which promised a “fair and impartial investigation.” It noted that Metrolinx was the only “complainant” in this case, because the employee herself refused to file a complaint or co-operate with the investigation. And it appointed its own employee relations manager to conduct the investigation.

That created an “obvious conflict of interest” because the complainant and the investigator were both the employer. The arbitrator deemed the terminations unjust, ordering that all five drivers be reinstated to their former positions.

“Sexual harassment is a serious offence,” the arbitrator said. “While employers have the obligation to protect their workers from sexual harassment… 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.”

It ruled the employer did not meet its due diligence in this case, calling the investigation 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.”

“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,” it said.

In addition to getting their jobs back, without loss of seniority, the drivers were awarded compensation to make them whole for “all monetary shortfalls and benefits of their employment to the date of reinstatement.”