Monday, 8 December 2014

Tales from the Electronic Workplace

Whether it's social media usage or just 'old-fashioned' email, some people still seem to underestimate the impact that misuse can have on their personal and professional lives (as well as the lives of others).  Some recent cases illustrate the point.

Labour Arbitrators Gail Misra and Elaine Newman recently had to deal with grievances brought by firefighters in the City of Toronto who were terminated for posting offensive comments on Twitter, which ultimately came to the attention of and were publicized by the National Post.  The employees had posted or re-tweeted comments or jokes that were disparaging of women, the disabled and visible minority groups. The tweets were discovered by the National Post, which then questioned how inclusive the Toronto Fire Service actually was.  This was particularly problematic for the employer, as it was in the midst of launching a diversity campaign to recruit women and other groups in accordance with the make-up of the community it serves.  The City was of the view that the tweets in question, from individuals who had identified themselves as Toronto firefighters, not only violated the City's policies, but also did harm to the City's reputation.

In the first of the grievances to be heard, Arbitrator Misra found that the employer had cause for some form of discipline, but ruled that discharge was too harsh.  It was common ground between the parties that the grievor had made the comments in his off-duty time, but that the grievor would have been aware of the importance of not bringing discredit to the Fire Service.  The Arbitrator found that the tweets were shared with co-workers, and had a connection with the workplace, and that their appearance in the National Post article did have potential ramifications for the City's reputation.  The Arbitrator also rejected the grievor's argument that he was unaware that his tweets were accessible to the public, given that he had an opportunity to review the terms of use for Twitter when he signed up.  Moreover, Twitter was designed to allow individuals to communicate publicly (in 140 characters or less) on timely topics.  The grievor may not have been aware of the Standard Operating Guideline specifically directed to social media use, but he knew that there were stringent expectations of firefighters whenever they were in the 'public eye'.  Accordingly, his inappropriate tweets (about 'swatting' a young woman in the head to "re-set her brain") did amount to cause for discipline.  With respect to two other tweets, however, the employer did not establish that the grievor's use of language had been offensive, within the context that he used the 'objectionable' terms.  Although the grievor did not fully understand why any of his comments on Twitter were inappropriate, he did apologize to the employer and his colleagues for the media storm that he had created.  In the result, the Arbitrator held that the penalty of discharge was excessive, substituting a 3-day unpaid suspension.

On similar facts, however, Arbitrator Newman found that discharge was warranted with respect to the other firefighter (decision not yet reported).  After reviewing the arbitral case law on off-duty conduct, Arbitrator Newman observed that the grievor ought to have known that his behaviour on Twitter was inappropriate.  Not only did it potentially bring discredit to the Toronto Fire Service, but it also violated the employer's anti-discrimination policy. At the hearing, the grievor's testimony suggested that he still lacked any insight into how improper his conduct had been, particularly for a firefighter.  In particular, Arbitrator Newman found that the grievor appeared to be incapable of behaving in a way that "brings honour to the uniform," and that his behaviour would reflect poorly within the community that the Fire Service was obliged to serve.  Given the damage that his actions had done to the employer's reputation, Arbitrator Newman upheld his discharge

In R. v. Dewan, the Ontario Court of Appeal was considering an appeal by the accused on his sentence for criminal mischief and harassment.  The appellant had tried to strike up a relationship with a co-worker which was rejected. The appellant continued to pursue the co-worker, until she advised him that she had contacted the police.  At that point, the appellant sent an email out that purported to come from the co-workers.  In the email (that was sent to 9 other co-workers) "degraded the co-worker professionally, sexually, and physically".  The appellant was also convicted of harassment with respect to similar behaviour toward a woman with whom he'd had a romantic relationship, after relations soured.  The appellant had served the equivalent of 2 months in jail, and was given a suspended sentence and 2 years' probation on the mischief charge, as well as 90 days (to be served intermittently) on the harassment charge.  The Ontario Court of Appeal dismissed his appeal, finding:
Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.
These cases demonstrate that context is key in assessing what, if any, disciplinary response is appropriate when an employee engages in off-duty, online conduct that violates workplace rules.  Even pejorative terms in Facebook or Twitter posts should be carefully be reviewed to determine whether they would be offensive to a "reasonable person".  Where an employee's behaviour can be traced to a lack of understanding of the rules or even to the nature of how social media works, employers should be prepared to weigh these factors before doling out punishment.  However, where an employee engages in aggressive behaviour toward a co-worker (such as was the case in R. v. Dewan), whether in person or via email, an employer should take strong action to address the misconduct.  The Court of Appeal's denunciation of the appellant's conduct should serve as strong support for an employer imposing harsh sanctions, including termination.

Do you have questions about implementing social media policy or addressing inappropriate online behaviour?  Contact Lance Ceaser for expert guidance.  




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