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
