In what we believe to be a first in Canada, a unionized employee has been disciplined for inappropriate twitter comments. The employer's decision to discharge the employee was set aside in favour of a three-day unpaid suspension. Arbitrator Gail Misra noted at paragraph 216:
In considering what the appropriate penalty should be, I have considered that at the time he made the 'swat in the back of the head' comment, the Grievor had identified himself as a Toronto firefighter. As well, the Grievor was not completely candid with the Employer about when he had removed the reference to being a Toronto firefighter from his Twitter profile. Honesty during an employer's investigation process is important as it may later be a mitigating factor. I have also considered the Grievor's lack of understanding that his tweet about swatting a girl on the back of her head to reset her brain was in fact inappropriate, insulting to women, and offensive because it appears to encourage the physical abuse of a female. In all the circumstances of this case I substitute the termination with a three day unpaid suspension.
City of Toronto and Toronto Professional Firefighters Association, Loc. 3888 2014 CanLII 62879
The full decision in this case is 45 pages long (218 paragraphs). We recommend reading it for the full picture of the matter by clicking on the link above however, the following provides our summary of key aspects of the decision.
After an investigation, Toronto Fire Services ("TFS") gave one of its firefighters (@Bassfire3680) a discharge letter. The investigation centered on a National Post article published in August 2013 alleging that the grievor and a co-worker had made inappropriate Twitter comments about women and other allegedly inappropriate tweets subsequently revealed during TFS' investigation.
These tweets, the TFO said in its discharge letter, were inappropriate and contrary to City of Toronto policies and guidelines; had harmed the TFS' reputation, and that of the City of Toronto; undermined the TFS' efforts to foster a diverse and welcoming workplace; and, had eroded trust and respect within the workplace and the TFS community it served. What did the National Post article say?
As fire department looks to recruit women, sexist tweets suggest some firefighters may not be so welcoming
Dean Somerset @deansomerset
Just stood behind a girl who used the word 'like' roughly 300 times to order her coffee. Stay in skool, kidz.
Lawaun Edwards @Bassfire3680
@deansomerset would swat her in the back of the head been considered abuse or a way to reset the brain?
Dean Somerset @deansomerset
@Bassfire 3680 Maybe foreplay?
Lawaun Edwards @Bassfire3680
@deansomerset unlikely, intelligence and a vocabulary is sexy. Saying 'like' that amount of times means you have none.
The grievor was a Black Jamaican Canadian male employed with the TFS since early 2011. At the time of the tweets reproduced in the article, he had 49 followers, followed 89 people and had sent out over 1500 tweets. While employed, the City of Toronto policies and guidelines and TFS policies, including one entitled Path to Diversity, had been brought to his attention through a recruit training class and were also made available to him and others in his assigned fire hall. The grievor understood that his job required him to be aware of the policies and that failure to comply could result in dismissal.
The grievor testified that he believed that his tweets were private and visible only to the person he to whom he was sending. At the same time, he understood that he had followers and that followers could re-tweet his tweets. Shortly after the article was published, all TFS personnel received an Advisory regarding "Personal Use of Social Media" noting the adoption of the Path to Diversity report and reminding staff of policies and guidelines for social media use.
The grievor was first put on a paid suspension while the TFS investigated. When the grievor was interviewed he admitted that his tweet that was reproduced in the Financial Post had been harmful to the TFS and apologized. It was clear on cross-examination that he did not understand that asking whether a "swat in the back of the head" might be viewed as an undignified comment, but instead repeatedly said that his comment had been an "off hand" comment. A copy of his Twitter profile at the time of the inappropriate tweets showed that he had identified himself as a "Toronto Firefighter, avid gym rat and ball hockey enthusiast". Other comments made by the grievor, not included in the article, included words such as "Paki", "nigger", "sweetie", and a derogatory reference to North Korea "new North Korean drink 'Tears of our Children' what do you people think?". Notably, all of the impugned tweets were made by the grievor while off duty and up to the Twitter incident, the grievor, a two and one-half year employee, had an unblemished performance record.
What did the arbitrator say?
Arbitrator Misra noted that there was negative press scrutiny on the TFS as a result of the tweets. Also, that the City of Toronto and the TFS had a reputation to protect and had to be seen as workplaces where all individuals are welcomed and treated with respect. On the issue of privacy and social media, the arbitrator quoted from Saskatchewan Government and General Employees Union v. Government of Saskatchewan, Ministry of Corrections, Public Safety and Policing (2009), 106 C.L.A.S. 157
...the reality of Facebook and other internet sites is that privacy and secrecy can never be guaranteed. Participants can never be entirely sure who will view the site".
The arbitrator did not accept the grievor's testimony that he believed he was tweeting only to the person to whom he addressed his tweets, commenting that the grievor knew that Twitter was a way to have discussions with a wide range of other Twitter users beyond his followers and that he had no control over who followed or retweeted his tweets saying:
...The fact that his 'swat in the back of the head' tweet came to the attention of the National Post is clear enough proof that it could and did have very wide distribution. ...
Because of this, the arbitrator was satisfied that there was a connection between the grievor's tweets and the workplace and that there was no basis for the grievor to believe that his tweets were private. Further, she did not accept the union's argument that Twitter was more like a private conversation than Facebook or blog posting saying:
Twitter is a social medium designed to permit those who wish to make comments or statements in 140 characters or less to do so. Those comments, unless a Twitter account is locked, may be viewed by one's followers, or may be re-tweeted to ever-larger circles of others' followers. It in fact permits a very public conversation between participants who may not know each other at all, except by having become followers.
Similar to the reasoning in the Tenaris Algoma Tubes decision (case comment by us in "Keep Your Facebook Comments to Yourself ... or better yet, don't put them out there at all!") the arbitrator found it would be counter-intuitive to find that simply because a policy did not specifically refer to Twitter, that the grievor or other employees would not be aware that they would be bound by policies regulating "public eye conduct", even during off-duty hours. Notably, the arbitrator found that the grievor's Twitter profile had identified him as a "Toronto Firefighter" until at least August 19, after being interviewed by the employer during the investigation into his conduct. Further, he had not stated on his profile that any comments that he might make were his own personal views, and not those of his employer. Arbitrator Misra said:
In any event, all of the Edwards' tweets that were considered by the Employer in its decision to terminate the Grievor's employment predated when the Grievor, even on his evidence, had tried to change his Twitter profile. Thus, I find that through his Twitter profile, Edwards had advertised that he was a Toronto firefighter, and had thus confirmed a connection between himself as a private citizen and his employer, the TFS.
A reasonable and fair-minded member of the public would view the "swat in the back of the head" tweet as inappropriate:
...Violence, or the threat of violence, against girls and women is socially unacceptable and may be criminally sanctioned. Jokes or off-hand comments about hitting girls and women are generally viewed with disapprobation. While I have no reason to doubt the Grievor's evidence that he is not abuse towards women, and that he holds strong women in high regard, his tweet that it may be appropriate to swat a girl on the back of her head in order to re-set her brain was an extremely ill-conceived one. It is not a laughing matter to suggest physical assault as a manner of correcting behaviour.
The arbitrator said that many people and women in particular, who would read the twitter exchange might find it offensive and the grievor ought to have known that making a comment about swatting a woman on the back of the head was inappropriate and could be seen as demeaning towards women. However, the comment did not create a poisoned work environment as there was no evidence to support this argument by the employer. The discussion was not about anyone in the workplace and no other firefighter followers responded negatively to the twitter conversation.
With respect to the other Twitter comments, the arbitrator noted that context was important and said:
- "sweetie" – "It is difficult to see how an objective and fair-minded person would find anything unacceptable in the use of such a term of endearment between friends, lovers, or spouses, even if the use was on Twitter". The words "go get it sweetie" attracted no discipline.
- "nigger" – The grievor's use of this word was not inappropriate, racist or derogatory in all of the circumstances – he was confronting racism by using the word.
- "paki" – The Grievor's response to this word posted by another individual was that the term was derogatory and he was simply trying to educate the other individual that the word was unacceptable.
Having found the "swat in the back of the head" tweet inappropriate, the arbitrator accepted that the grievor had apologized a number of times for putting the TFS in the National Post spotlight. He also apologized in general terms for anyone offended by his tweets. Further he apologized for not having locked his Twitter account earlier.
Having said all of this (and more if you choose to read the full decision cited above which we recommend), the arbitrator found that discharge was too harsh of a penalty saying:
- While the employer had social media policies, it had not publicized those policies as well as it might have done given the wide-spread use of social media;
- The circumstances were at the low end of the spectrum of unacceptable behaviour;
- The comment was a one-time event and not an attempt to challenge the employer's efforts to be more inclusive and welcoming to women;
- The grievor was a two and one-half year employee with a clean record at the time of termination who loved his job and genuinely wanted to help people during distressful and traumatic times;
- No one employed by the City or TFS had ever complained about the grievor's tweets and there was no evidence that the grievor had alienated females in the workplace making a return to work not problematic; and
- The grievor himself had a very positive view about recruitment and retention of women at the TFS.
Arbitrator Misra substituted a three-day unpaid suspension for the discharge.
What does this mean to you?
This decision provides yet more guidance for employers dealing with social media comments made by off-duty employees and is proof that there is no "one size fits all" discipline – especially in different types of workplaces. Comments must be read in full context and with a view of the employee's prior discipline, etc. and then dealt with accordingly.
This is an opportunity for employers to pull out and dust off workplace social media policies and update them accordingly. What do we take from this case in addition to what we've talked about in the past?
- Be broad in stating what social media platforms are included in the policy. The top 15 (link: http://www.ebizmba.com/articles/social-networking-websites) most popular sites are: Facebook, Twitter, LinkedIn, Pinterest, Google Plus+, Tumblr, Instagram, VK, Flickr, Vine, Meetup, Tagged, Ask.fm, MeetMe, ClassMates.
- Your policy should clearly say that employees must disassociate their comments from those of their employer.
Perhaps most important and something we find ourselves constantly repeating, train, train and train your workplace and include training on what may be viewed as offensive commentary.