Friday, 31 October 2014

Labour Arbitrators Uphold Discharge of Facebook Bullies

Two recent cases illustrate that labour arbitrators are more than willing to consider misconduct via social media a serious offence.  In both cases labour arbitrators upheld the terminations of employees for incidents of online bullying and harassment.

In CEP, Local 64 and Corner Brook Pulp and Paper Limited, the grievor worked at a pulp and paper operation for almost 13 years.  On one occasion, the grievor was asked to work a casual shift cleaning up pumps on one of the paper machines.  While cleaning the area around the pump with a pressure washer, water from the washer hit the motor and grounded it.  The motor sparked before coming to a halt, and the grievor was frightened by the incident.  She believed that the work was dangerous, although she was assured that it posed no risk of injury.

A couple of days later, the day that an investigatory meeting was scheduled to occur, the grievor posted comments on Facebook abusing certain named managers and threatening violence against management for failing to take safety seriously.  Two of the managers named in her post were concerned enough to contact police, although no charges were laid.  A co-worker mentioned the post to the grievor, and she immediately took it down.  However, by then it had been posted for several hours and would have been visible to a number of other employees who were the grievor’s Facebook “friends”.

During an investigatory meeting, the grievor acknowledged that she had made and posted the comments, but minimized the degree to which they were intended to be threatening.  She also seemed less than remorseful, and more focused on finding out who had ‘ratted her out’.  The employer discharged the grievor, relying on her Facebook comments and a prior one-day suspension that she received for abusing a supervisor about one year earlier.  Her discharge was grieved.

At arbitration, the grievor testified that she had been diagnosed with anxiety earlier in the year, and had been prescribed anti-depressants.  However, over time she decided to stop taking the medication (although she did not consult a doctor before doing so).  She alleged that, as she weaned herself off the anti-depressants, she had difficulty sleeping, especially following the “safety incident” that had just occurred.  She said in the circumstances, she was “not in her right mind” when she made the post in question.  She acknowledged that the comments were inappropriate and could be taken as threatening, and offered an apology to the company and the managers she had named.

The Arbitrator reviewed the evidence and found that the so-called safety incident did not constitute provocation, nor was the grievor justified in being frustrated with how the matter was being investigated by the employer.  The Arbitrator carefully analyzed the content of the grievor’s post and found that it contained seriously offensive and threatening statements.  The Arbitrator also reviewed the arbitral cases involving the appropriate penalty for abusive and threatening Facebook posts.  While many were distinguishable, the precedents did establish that a single inappropriate post, if egregious enough, could constitute just cause for discharge.  Moreover, even in those cases where adjudicators had found that dismissal was inappropriate, the claimants often weren’t reinstated due to the damage to the employment relationship.

In considering mitigating factors, the Arbitrator did not accept the grievor’s medical explanation for her behaviour.  While the Arbitrator believed that she may have been having difficulty sleeping, it appeared that she was able to perform her job and the post was logically constructed, suggesting that she was not “crazy and delusional”, as she alleged.  Her 13 years’ service was a consideration, but given the severity of the posting, her disciplinary record, and the lack of any indication that the employment relationship could be repaired, the employer was found to have just cause to discharge the grievor.

In United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc., another employee was terminated because of a Facebook posting.  After a dispute about how a co-worker was performing her job as signalperson, a crane operator went home and posted disparaging comments about the co-worker on Facebook.  Although he did not name her, the co-worker was identifiable to other employees by the manner in which the grievor described her.  A second employee chimed in suggesting that the grievor should commit a physically aggressive act to the co-worker, to which the grievor responded by suggesting that a “violent and humiliating sex act be inflicted upon” the co-worker (to quote the Arbitrator’s description of the comments which were omitted from the decision).  The co-worker was alerted to the comments by another employee, and approached Industrial Relations the following morning.

It was notable that the grievor’s last comment was posted two hours after the first.  After he was called to a meeting with Industrial Relations the next day, but before the meeting, he deleted the post.  Because the grievor was not utilizing any privacy settings, the post was open to anyone who came upon his Facebook page. 

In the investigative meeting, the grievor acknowledged his wrongdoing, and offered to apologize to the co-worker.  Management advised him that this would not be a good idea as the co-worker was still very upset.  The grievor expressed concern that he didn’t want to lose his job.  He was not asked about any events that preceded or may have influenced his behaviour, and the employer ultimately concluded that this act of harassment was inconsistent with continued employment.  The grievor was discharged, and the matter proceeded to arbitration.  The other employee who commented on his post received a 10-day suspension.

The Union argued that the employer was not compliant with the Occupational Health and Safety Act in that its policy was not recently updated and available to employees in a conspicuous location, and therefore could not rely on its Bill 168 obligations to discharge the grievor.  It further argued that the grievor was truly remorseful and was a good candidate for rehabilitation, despite some past discipline.  The Union also argued that the employer did not consider the safety issue that had arisen between the grievor and his co-worker on the evening preceding the offensive posts when it decided to terminate his employment. 

Arbitrator Trachuk considered the evidence and rejected the Union’s position, finding that the largest aggravating factor in the case was the “vicious and humiliating” nature of the comments that were made.  Moreover, the Union’s argument that the employer should have considered the dispute between the employees before deciding to discharge the grievor was misguided:  even if the grievor was frustrated with the way the employer responded to the issue, that could not in any way explain or excuse his behaviour.

With respect to the fact that the harassment policy was ‘inaccessible’, the Arbitrator did express mild concern that it should be more readily available.  However, she observed that the grievor had received training, and went on to state:
… Furthermore, sexual harassment has not just become unlawful or unacceptable with the inclusion of Bill 168 in OHSA. It has been in the Human Rights Code for many years. I did not hear from the grievor but it would be highly unreasonable for him to claim that he did not know that publicizing such comments about a co-worker was harassment and contrary to the company’s policies.

Although the employer’s policy did not mention social media activity, the grievor would have known that he was making public statements about a co-worker to other co-workers, and that the types of statements he was making could attract discipline.

With respect to the employer’s decision to terminate rather than imposing further progressive discipline, the Arbitrator found:
… progressive discipline is not appropriate in every case. 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.

In the result, the Arbitrator concluded that the grievor's 3 1/2 years' service did not deserve significant weight, and that discharge was the appropriate penalty in the circumstances.

 While it is not expressly stated in either decision, it appears that labour arbitrators are reaching the point where harassment, whether in person or through social media platforms, is viewed as an offence akin to theft:  an employer hardly needs to have a policy in order for employees to understand that abusive and intimidating behaviour directed at co-workers and managers will not be tolerated.  While employers still have obligations under the Occupational Health and Safety Act to ensure that employees do not engage in harassment or threats of violence, these decisions give some comfort that severe penalties can be imposed where this behaviour occurs.  As these two grievors learned, discharge is a likely outcome in the absence of very compelling mitigating factors. 

 Do you have questions about workplace harassment and how to address it?  Need assistance with appropriate policies or investigations?  Contact Lance Ceaser for assistance.


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