EV Logistics concerned the discharge of an employee as a result of the contents of a publicly available blog that he maintained. The blog, which contained violent fantasies, racist comments, numerous references to the employee’s admiration for Hitler, and photographs and statements identifying the blogger as an employee of EV Logistics (the “Employee”), came to the attention of management by way of an anonymous email expressing concern about its contents. Following a meeting with the employee, two supervisors, and the union representative, the employee was suspended and later terminated. Finding that there were sufficient mitigating factors, the arbitrator directed that the grievor be reinstated in his former employment position.
The employee was 22 years old at the time of arbitration and had been employed by the company for approximately six years. Though he had a clean disciplinary record, the contents of the blog were such that the employer became concerned about the safety of his employees and the RCMP were contacted and asked to ensure that the employee was not a threat to himself or others. In the subsequent meeting with the employer, the employee disclosed that he “suffered from depression, had experienced significant challenges in his life, had not known his mother as she had left the family when he was three weeks old, was raised primarily by his grandparents and had been overweight until age 15”, all of which was given significant consideration by the arbitrator.12 The employee also explained that he did not admire Hitler “but admired his ability to influence and control people” and that he never thought that what he wrote would affect his job. He offered to apologize and sent a lengthy written apology to his supervisor on the same day as the meeting.
In the termination letter the employer stated that the blog posts were “inherently reprehensible” and fundamentally inconsistent with the values of Canadian society and that the views expressed in the blog in association with the identity of the employer indicated that the employee was “unsuited for continued employment”.13 The employer argued that the dismissal was justified in light of the offensive, racist and hateful blog postings and because of the nature of the internet in that such postings should be considered much more invasive in assessing the degree and extent of the damage caused and the level of responsibility of the person doing the posting. The union argued that there was no connection between the business interests of the employer and the employee’s blog and that, in the alternative, there were a number of mitigating factors such that a significant reduction in the disciplinary charge was appropriate.
In reaching her conclusion, the arbitrator found that the grievor’s young age as well as the challenges he had faced in his life provided important context in considering the gravity of the offence and the reasons for his actions. She found that there was a connection between the blogging and the business interests of the employer and that where employment is linked to off‐duty conduct that is sufficiently abhorrent and reprehensible, harm can be presumed provided that there is public access to that conduct. However, given that the existence and identification of the employment relationship was only coincidental to the grievor’s conduct and that the grievor had acted appropriately as soon as he realized his wrongdoing in apologizing for his actions, a reduction in the disciplinary penalty was justified.