In a significant arbitration decision handed down this week, five GO Transit bus drivers were found to have been unjustly terminated due to private conversations they held on the encrypted messaging platform, WhatsApp.
This decision sheds light on the broader debate about the boundaries between personal freedoms and workplace policies, especially in the age of digital communication.
The central figures in this case are all seasoned drivers with seven to 10 years of service with GO Transit, operated by Metrolinx.
The dispute began when it was discovered that these drivers were involved in private online discussions where they made a series of derogatory comments about fellow employees.
Off-duty chats on personal devices
Regardless of the content of their remarks, the arbitration document highlighted that these drivers firmly believed and intended for their conversations to remain “private to the members of their group”, assuming them to be beyond the scrutiny of their employer as they took place outside work hours and through their personal devices.
The decision offers insight into the nature and content of the drivers’ discussions. Phrases and references to coworkers in the context of derogatory and sexually explicit remarks were unearthed. This discovery was unsettling and pointed to a broader cultural issue.
Yet, the pivotal question in the case remained: should off-duty personal communications, especially those that are “not accessible to the general public”, be grounds for workplace disciplinary actions?
The rights of workers
In making his determination, the arbitrator leaned heavily on the principles of personal privacy and freedom of speech. The ruling underscored the importance of respecting the drivers’ rights. A direct quote from the decision reads: “the Grievors did not give up to the Employer their fundamental right as Canadian citizens or residents to privacy and freedom of speech on their own time with their colleagues and friends.”
This viewpoint pushes back against the increasing trend of employers monitoring or acting upon employees’ personal and off-the-clock behaviors, particularly in digital spaces.
Criticism of employer’s investigation
Another significant aspect of the ruling was the criticism levied upon the employer’s investigative process. The arbitrator noted procedural flaws and discrepancies in the employer’s approach.
Of particular concern was the employer’s failure to adhere to their own “Workplace Harassment and Discrimination (WHD) Prevention Policy”.
This misstep was deemed significant in the context of the case. The arbitrator did not mince words, pointing out a glaring “conflict of interest between the representative of the purported Complainant (i.e., the Employer) and the designated ‘fair and impartial’ Investigator (i.e., also the Employer)”. Such observations raise concerns about the fairness and impartiality of internal investigations.
Despite the arbitrator’s clear stance on the drivers’ rights and the flawed investigative process, the decision was not devoid of criticism towards the drivers. Their choice of language and the nature of their comments were condemned. The decision made it clear that while their conversations were private, the content was “reprehensible” and not in alignment with accepted norms of decency.
However, the focus remained firmly on the broader implications of the case. In an era where digital conversations blur the lines between personal and professional, the verdict sets a precedent about where to draw the line. For many, it raises the question: To what extent can, or should, employers venture into the personal digital conversations of their employees, even if they potentially reflect poorly on the company?
Concluding the case, the arbitrator ruled that the termination of all five drivers was without “just cause”. As a result, GO Transit has been ordered to reinstate them to their former positions, compensate them fully for their period of absence, and ensure that all records of this disciplinary action are expunged from their employment files.
For more information, see Amalgamated Transit Union – Local 1587 (Juteram et al) v The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB)
