Arbitrator's Decision Concerning Inappropriate WhatsApp Messages Gets Overturned

In a recent decision,¹ the Ontario Divisional Court overturned the decision of an arbitrator concerning the reinstatement of five employees who had been terminated by the employer due to allegations of workplace harassment and misconduct.²

What Happened?

The grievors, who were transit drivers, were texting through the messaging platform "WhatsApp" on their personal cellphones. These communications included negative, derogatory, and sexist comments about a female acting supervisor, "Ms. A". The comments were brought to the attention of the employer during an unrelated investigation, and a subsequent investigation into the grievors' conduct was initiated.

During the investigation, the investigator interviewed Ms. A, who had previously been shown screenshots of the offensive messages by another employee. Although she acknowledged that she was upset by the messages at the time, Ms. A did not file a formal complaint, nor did she wish to participate in the investigation. The employer continued with the investigation anyway and ultimately found that the grievors had engaged in sexual harassment in the workplace, in violation of the employer's policies. The employer terminated the grievors' employment for cause.

The union filed grievances, which were referred to the Grievance Settlement Board. The arbitrator issued a decision finding that the terminations were without just cause and ordered the reinstatement of the grievors without loss of seniority, and with compensation for loss arising from the terminations. In arriving at this conclusion, the arbitrator found that:

1. the communications had occurred outside the workplace, on the grievors' own time, using their personal cellphones through a medium they intended to be private;
2. that the employer did not have license to intrude on the grievors' private communications;
3. that the employer could not conduct an impartial investigation because Ms. A did not file a formal complaint, and they could not act as both the complainant and the investigator; and
4. that Ms. A did not believe she was the victim of sexual harassment and if Ms. A was not prepared to file a complaint, the employer could not substitute itself as the complainant under the policy.

What did the Divisional Court decide?

The Court found that the arbitrator's conclusion that the employer could not conduct a fair investigation due to the absence of a formal complaint was inconsistent with the employer's obligations under the Ontario Human Rights Code and the Occupational Health and Safety Act.

The Court emphasized that the duty to investigate workplace harassment extends to incidents as well as complaints, and the employer cannot rely on a victim's reluctance to file a complaint to avoid their obligations or be relieved of their statutory duties. Contrary to the arbitrator's finding, the employer did not "become the complainant" when it launched its investigation, because no complainant was necessary.

In addition, the arbitrator's conclusion that there was no harassment because Ms. A did not file a complaint was inconsistent with decisions from the Supreme Court of Canada, which have warned against relying on a victim's reaction or reluctancy to file a complaint when adjudicating such matters.

The Court also noted that the arbitrator's focus on the grievors' expectation of privacy given they had communicated over WhatsApp chat group, with a limited number of participants was misplaced. The arbitrator had ignored evidence that demonstrated the messages had come to the attention of the female employee, other employees in the workplace had access to or became aware of the messages, and the "open nature" of the chat group in itself, where messages could be freely forwarded to others. The employer had a duty to address the demeaning and offensive work environment created by the comments. The Court concluded that the arbitrator had failed to properly apply the relevant legal provisions and, accordingly, the decision was unreasonable.

Applying a reasonableness standard, the Court ultimately concluded the arbitrator's decision was fatally flawed. It granted the employer's application, quashed the arbitrator's decision, and remitted the matter back to a different arbitrator for reconsideration in accordance with the Court's reasons.

Takeaways

The decision confirms that employers have an obligation to investigate incidents of potential sexual harassment when they become aware of them, whether or not a formal complaint is filed. Investigator's should also be wary of relying on an employee's reluctance to provide information about potential sexual harassment to reach conclusions, as there may be a number of reasons why the employee may not be willing to do so (for example, fear of reprisal, embarrassment, humiliation).

In addition, the decision reiterates that the intention to keep communication or conduct private does not absolve an employee of responsibility. Where that communication or conduct is inappropriate and makes its way into a workplace, it may become disciplinable.

Footnotes

1. 2024 ONSC 1900

2. 2023 CanLII 72192 (ON GSB)

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