In Wasaya, airline pilot John Wyndels filed a grievance after being dismissed from his employment with Wasaya Airways LP as a result of a posting he had made on Facebook. The company submitted that the statements, while off‐duty conduct, harmed the company’s reputation and that given that the Facebook post contained “extremely serious, offensive and derogatory remarks concerning the Company’s owners and customers”, the dismissal was justified. The Association argued that any harm was speculative rather than actual and that less severe discipline ought to have been levied.
The company is an airline that provides service to approximately 40 First Nations Communities with its customer base being described as “at least 90%” First Nations People. The company’s “Employee Policies and Procedure Handbook” lists a number of “First Nations values”, viewed as “guiding principles” in the organization and it was accepted that respect for the First Nations people was essential given that it was a business run, serviced and used by First Nations people. The Facebook post, which was not reproduced in the decision, consisted of a “Top 10 list” titled “You know you fly in the north when…” and described as racist, offensive, disrespectful, and derogatory and “not in the least bit complimentary towards the Company’s clients”.
In his decision, the arbitrator cited Alberta and Chatham‐Kent for the proposition that “where the internet is used to display commentary or opinion, the individual doing so must be assumed to have known that there is potential for virtually world‐wide access to those statements”.14 Unlike in those cases, there was nothing in the Facebook post identifying the company, or stating that the grievor was an employee of it, however, the remarks were found to have a real and material connection to the airline and gave reason to the company to have both substantial and warranted concerns about potential reputational harm.15 While the conduct did not directly affect the grievor’s ability to perform his duties, the fact that his presence in First Nations Communities as a pilot with the company had the potential to harm the Company’s reputation thereby rendering him unable to perform his duties.
The arbitrator concluded that while the grievor’s misconduct was a serious breach of the Company’s policies, the discipline imposed was excessive in light of a number of mitigating factors. However, given that the Facebook post had the potential for significant detrimental effect on the Company’s reputation and that management expressed an unwillingness to work with him again, the employee’s misconduct was such that the employment relationship was found to have been rendered untenable. The arbitrator’s award provided that the grievor was entitled to full compensation and benefits for a 3 month period during which he was deemed to have been suspended after which he was to resign from the company with the letter of dismissal being expunged from his record.
