The most serious aggravating factor in this case is the nature of the comments.  They were vicious and humiliating.  The company has characterized the posts as threatening.  It would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened.  The grievor suggested that X should be sexually assaulted.  He must have anticipated that she would see the posts or hear about them because his Facebook ‘friends’ included co-workers.  He also, apparently, had not used any privacy settings since Mr. Kmpotich and Ms. Amato could read them.  He did not delete his comments as soon as he made them but left them up for 10 hours.

USWA, Loc. 9548 and Tenaris Algoma Tubes Inc. 2014 CanLII 26445 at pg 13-14

What happened?

The grievor was a crane operator with three years seniority.  He complained about a co-worker (a “stocker”) on Facebook.  Other co-workers who were Facebook friends of the grievor commented.  Although the “stocker” was not identified by name, there were physical characteristics referenced that identified her.  The commentary on Facebook continued until they included suggestions of a physically aggressive act.  The crane operator also made suggestions that a violent and humiliating sex act could be inflicted on the stocker and mentioned a cruel nickname associated with the stocker’s personal characteristic.

The stocker was told about the Facebook comments by a co-worker and complained to the Industrial Relations Coordinator (IRC) and Industrial Relations Analyst (IRA).

The Facebook postings were public.  You did not need to be the grievor’s Facebook friend to see the post.  After the company advised the union steward that they wanted to meet with the grievor, the posts were taken down.  When the grievor met with the IRC and IRA, he apologized and said he was embarrassed and had deleted the posts.  Further, he said he didn’t want to lose his job and it would never happen again.  The grievor was sent home pending further investigation.

After the investigation, the grievor was terminated because the company concluded that the posts involved physical and sexual threats and had embarrassed the co-worker.  The termination letter said that the Facebook comments were discriminatory, harassing and inappropriate and violated the company Code of Conduct, the Collective Agreement and Ontario’s Bill C-168 (Workplace Harassment and Violence).

The union grieved.

What did the arbitrator say?

Arbitrator Laura Trachuk noted that the short service of the grievor did not inspire confidence and that the “apology” offered by the grievor was too little too late:

The union asserts that the grievor’s apology is another mitigating factor.  The grievor did apologize to the company in his first meeting and offered to apologize to X.  An admission and an apology are not exactly the same thing.  An admission after a person has already been caught is not worth much.  The grievor’s offence was visible on his Facebook for many people to see for many hours.  Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained.  However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self serving.  That is why a grievor who wants to persuade an arbitrator of his sincerity will testify.  This grievor did not.  The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

One of the union’s arguments was that the company’s policies did not refer specifically to Facebook or other social media and that the policies did not refer to the possibility of discipline or discharge.  The arbitrator said that although ideally policies would include all of those things, the point of posting on Facebook is to “share” views with other people – an act of publicity.  The grievor had to expect that the stocker would hear about it and it was only reasonable to conclude that he must have intended for her to find out about the comments.  This, the arbitrator said, was not “off duty” conduct because it was directed at poisoning the stocker’s work environment.

On the issue of progressive discipline and denying the grievance, the arbitrator said

…the grievor sexually harassed [the stocker] and created a poisoned work environment.  The grievor is not a long term employee and the company could have little confidence that he could be trusted to never harass someone else.  The company is responsible under the Human Rights Code, OHSA and the collective agreement for maintaining a workplace free of harassment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a different shift from [the stocker].  This is not an appropriate case for progressive discipline.  I do not find that the company violated the collective agreement by terminating the grievor’s employment.  The grievance is denied.

These are just some of the things the arbitrator had to say; we recommend you read the decision in its entirety for further perspective.

What does this mean to employers?

This is another example of a situation where an employee can be terminated for off-duty behaviour.  This area of the law continues to develop and this case is important because it gives clear direction as to when an employer may skip the steps of progressive discipline and move directly to termination.  Employees should be held accountable for all behaviour that offends human rights or workplace health and safety legislation or workplace policies or collective agreements that direct a workplace free of harassment.

The case is a good reminder to make sure your workplace policies are up to date, circulated in the workplace and consistently enforced.