An arbitrator in Ontario recently dealt with the termination of
a crane operator. He had been fired by the company for posts that
he made on his Facebook page concerning a fellow employee.
(United Steelworkers of America, Local 9548 v Tenaris Algoma
Tubes Inc, 2014 CanLII 26445)
The crane operator was unhappy with the performance of a female
co-worker whose job included signaling to him while he operated the
crane. When he went home after work that night, he went on Facebook
and complained about his co-worker. Although he did not name her,
he used her nickname and references to her appearance that made her
readily identifiable to other employees.
After reading the Facebook post, another employee suggested, in
the words of the arbitrator, "performing a physically
aggressive act" against the female co-worker. The arbitrator
then said that the crane operator agreed with that comment and
"added the further suggestion that a violent and humiliating
sex act be inflicted upon" the female co-worker.
The Facebook posts were not protected by any privacy setting and
they were read by fellow employees. Within a few hours, the female
co-worker became aware of the statements being made about her on
Facebook. She was understandably very upset and reported the matter
to the company on the following day.
When the company called the crane operator in as part of its
investigation, he immediately apologized, said that he was
embarrassed by what he had done, and reported that he had deleted
the Facebook posts. He said that he wanted to apologize to his
female co-worker. He said that he did not want to lose his job and
that he would never engage in such behaviour again.
Employee's Apology and Regret Not Enough
Despite his willingness to apologize and his expression of
regret, the company decided to terminate his employment. It was the
view of the company that the degrading and violent suggestions in
the Facebook posts were made over a two-hour period and, therefore,
were not made in a moment of anger. The company also noted that, as
result of the discussions on Facebook between the crane operator
and other employees, he knew that he was making inappropriate
comments to an audience of fellow employees.
The employer relied on its obligations under the Human
Rights Code and the Occupational Health & Safety
Act ("OHSA") to provide a workplace free of
harassment of other employees.
The union's position at the arbitration was that the crane
operator should be reinstated because he had demonstrated his
remorse by apologizing immediately and taking down the Facebook
posts. The union said that he was unlikely to reoffend.
Arbitrator's Decision Showcases Seriousness of Social Media
The arbitrator concluded that the Facebook posts were
"vicious and humiliating" and noted the comments had not
been deleted until 10 hours after they were made. The arbitrator
further noted that the crane operator had only been employed for 3
1/2 years which she characterized as a "relatively short
period of time ... (that) can only be a minor mitigating
Finally, the arbitrator decided that progressive discipline did
not have to be followed in this case. She stated that "some
offences are so serious that they warrant discharge. An employee
does not necessarily get one free sexual harassment before he loses
his job". She upheld the termination on the basis that the
company was responsible under the Human Rights Code and
OHSA, as well as the collective agreement, for maintaining
a workplace free of harassment and that reinstatement of the
grievor would be "contrary to that goal".
This case is a further example of the ability of employers to
discipline employees on the basis of their posts on Facebook or
other social media. It also demonstrates the seriousness with which
arbitrators view such social media attacks on co-workers.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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