2019 brought several notable cases impacting employment and labour law. We have put together a brief summary of 10 Canadian decisions we believe employers should be aware of as we head into 2020. 1. Ruston v Keddco MFG (2011) Ltd, 2019 ONCA 125 Ontario Court of Appeal provides an important lesson that overly aggressive tactics […]read more
Employee Terminated for Comments Made Over Social Media
In Re Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D.), 2014 CarswellOnt 8009 the employer terminated an employee for offensive comments made on social media and directed at a female co-worker. The Union grieved the employer’s decision to terminate the employee.
Tenaris Algoma Tubes Inc. (the “employer”) manufactures tubing for the oil and gas industry. The Grievor started working for the company in 2010 and was a crane operator at the time of his termination. The Grievor complained to his supervisor about a female co-worker (“co-worker”) whose job it was to signal to him while he operated the crane. The following day the Grievor went on Facebook and complained about his co-worker, resulting in work colleagues commenting on the post. What was said in the post was not disclosed in the arbitrator’s decision. Although the Grievor did not name the co-worker, he did describe a physical characteristic that would identify her to their colleagues. The Grievor engaged in commentary on the post including what the arbitrator described as performing a “violent and humiliating sex act” he also referred to the co-worker by a “cruel nickname”.
The co-worker was advised of what was being said shortly after the post appeared. She complained to her supervisors immediately and was in tears when she showed them the post. The co-worker went back to work but left early as she was very upset. Her supervisors then met with the Grievor. The Grievor stated that he was very remorseful, deleted the post and wanted to apologize to the co-worker.
The employer conducted an investigation and terminated the Grievor. The employer testified that they had not considered the Grievor’s past discipline record because the conduct was so serious it warranted discharge on its own. The employer stated that the Grievor’s actions were contrary to its code of conduct, collective agreement and workplace harassment policy.
The Union filed a grievance on behalf of the Grievor arguing termination was not the appropriate penalty.
The issue for the arbitrator was whether the penalty of termination was appropriate. After assessing the aggravating and mitigating factors she found that it was.
The nature of the comments were “vicious and humiliating”. It was reasonable for a woman reading the post and comments to feel threatened. The Grievor had suggested that the co-worker should be sexually assaulted. He ought to have known she would have been made aware of the comments. Furthermore, he left the comments up for over 10 hours. The arbitrator noted that “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker”. The prior disagreement between the two did not excuse the Grievor’s actions. Not using the co-worker’s name was not a mitigating factor to be considered as the Union argued. The Grievor referred to her by an identifying characteristic and a nickname – it was clear that fellow workers reading the posts would know who the Grievor was talking about. The Union also argued that the employer’s policies did not specifically address conduct on social media. Although the arbitrator noted that ideally those policies would address the issue, the lack of language in the policy was not a mitigating factor as the Union argued. The arbitrator also noted that the Grievor must have intended for the co-worker to see his post and stated that it was not “off-duty” conduct because it was directed at poisoning his co-worker’s work environment.
Lastly, the arbitrator found that in the circumstances progressive discipline was not necessary, she stated:
Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her. […] 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 X. This is not an appropriate case for progressive discipline.
LESSON FOR EMPLOYEES
Keep negative comments about you co-workers, employer, clients, etc. to yourself and especially off of social media.
LESSON FOR EMPLOYERS
It is advisable to have a clear policy addressing employees’ conduct on social media. Although in most circumstances progressive discipline will be necessary, there are circumstances when conduct is so serious it will justify immediate termination. The off duty conduct of employees can result in discipline in certain circumstances. Employers must remember they are obligated to provide a workplace that is free of harassment. This case demonstrates that in appropriate circumstances harassment occurring outside of the workplace can subject to employer action.