As one of the seminal decisions of 2014,
USW and Tenaris Algoma Tubes Inc. raised the issues of off-duty
conduct, sexual harassment / threats and social media. The
grievance arbitration decision upheld the dismissal of an employee
after he posted sexually threatening and harassing comments
regarding another employee on his Facebook page.
Most of the facts were not in dispute. On the day in
question, the grievor (referred to as "D") was a crane
operator and was being assisted by a colleague (referred to as
"X"). D and X were involved in a safety
related dispute during a shift on February 24, 2014. The
dispute was raised with management and the shift was completed
without further incident. Following the shift, D posted
comments on his own Facebook that included reference to a physical
characteristic of X, a cruel nickname to identify X, and the
suggestion that a violent and humiliating sex act be performed on
her. The comments were made over a two hour period and
seen by several other co-workers. Other co-workers
"liked" some of the online posts and at least one other
employee provided further degrading comments. These comments
were made known to X through another colleague and she presented
them to management. D was terminated following an
The decision to terminate was based on the very public and
serious nature of the comments, and the employer's workplace
harassment policy. The termination was grieved and the
union presented several arguments for a less severe penalty.
The union argued several factors should mitigate the
penalty. Arbitrator Trachuk's review of the union's
arguments provides useful insight for employers when assessing the
appropriate penalty for social media related harassment.
These can be divided into factors related to the grievor and
The union argued the earlier dispute between the parties, not
disclosing X's name in the online posts, and the grievor's
apology should result in a lesser penalty. The earlier
dispute argument was rejected because the employer spoke with X
regarding the safety issue, and the online comments cannot be
attributed to the "heat of the moment". They
were made well after the initial dispute and simply did not account
for the viciousness of the comments. The failure to identify
X by name in the post was also rejected. D identified a very
personal characteristic of X and was clearly aware that other
co-workers knew who he was referring to. The apology could be
a mitigating factor but apologies made after the fact are viewed as
self-serving and the grievor failed to testify on his own behalf in
order to express the sincerity of his apology. In fact, the
failure to testify as a witness was viewed as a damaging component
to each of the mitigation arguments.
The union also presented arguments that the employer's
failures should mitigate the penalty. The union's
position was that the workplace harassment policy was outdated and
inaccessible, the investigation was inadequate, and the penalty was
discriminatory when compared to the 10-day suspension imposed on
another co-worker that commented on the Facebook post.
Despite the policy being kept behind glass, the employees were
aware of it and had undergone training related to Bill 168.
Importantly, the decision also stated that the failure to mention
Facebook or other social media within the harassment policy was not
detrimental in light of the seriousness of the comments. The
arbitrator refused to accept the assertion that someone would
reasonably consider the comments acceptable because social media
was absent from the workplace harassment policy.
Arbitrator Trachuk also reviewed the employer's
investigation and made two distinct findings: an employer is not
required to obtain a written statement from the grievor, and the
lesser penalty for his colleague was appropriate when comparing the
seriousness of the comments.
This decision serves as an important case for employers when
faced with complaints of social media related harassment or
bullying. Discharge, rather than progressive discipline, may
be appropriate depending on the nature of the comments and your
The Occupational Health and Safety Act requires all
employers to have an updated harassment and violence policy and an
accompanying program regarding workplace violence. The
lawyers at CCP can assist you with drafting appropriate workplace
harassment policies and investigating allegations of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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