Another Brick in the Wall: Arbitrator Upholds Discharge for Offensive Facebook Postings

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This is the publicly published case study of a legal case I worked on involving the dismissal of an employee based on their posts to Facebook. ...

This is the publicly published case study of a legal case I worked on involving the dismissal of an employee based on their posts to Facebook.

This document was originally published by Field Law LLP.

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Another Brick in the Wall: Arbitrator Upholds Discharge for Offensive Facebook Postings Another Brick in the Wall: Arbitrator Upholds Discharge for Offensive Facebook Postings Document Transcript

  • WORKWISE CURRENT EMPLOYMENT AND LABOUR LAW ISSUES MARCH 29, 2012 ANOTHER BRICK IN THE WALL: ARBITRATOR UPHOLDS DISCHARGE FOR OFFENSIVE FACEBOOK POSTINGS A prominent labour arbitrator has “C_unt,” and “the devil”. The other upheld the discharge of a long-term supervisor was characterized as a “yes KEVIN FETH employee for posting offensive material man” and an “idiot”. The posts also about her supervisors on Facebook, contained threatening language such and in doing so, has clarified some as “DIE BITCH DIE,” and “WRONG of the legal principles applicable to AGAIN BITCH you gonna be the one misconduct involving social media. missing PERMANENTLY”. In Canada Post Corporation v. The posts also provided numerous Canadian Union of Postal Workers1, examples of insubordination towards a postal worker with 31 years of Canada Post and its managers:TERRI SUSAN ZURBRIGG service made comments on Facebook over the course of four weeks that • “3 nights of freedom from Postal maligned and seemed to threaten Hell. two of her supervisors. While the • Lovin’ my indefinite suspension postal worker thought that her posts • Hell called. They want the Devil were private, and restricted to her back. Sorry, she’s busy enforcing 52 Facebook Friends (including some productivity @ [the postal depot] co-workers), she had failed to engage • I’m texting in Sick. My idiot the privacy settings, leaving her supervisor is 24. Facebook Wall publicly accessible. • Tonight is my first night back, The Facebook posts were reported since my suspension, but I’m just to management by another employee. not feeling well enough to meet When the supervisors accessed the expectations, hell I’m on my fourth site to investigate, they were both so cooler, so I’m staying home to rest/ disturbed by the contents that they pass out. Lolol, I’ve gone Postal.” reported the postings to the police and required time away from work. While the Grievor posted most of the Facebook material while she was off- The posts referred to one of the duty, some of the posts were made supervisors as “evil,” a “bitch,” a “hag,” using her cell phone while at work. 1 Canada Post Corporation v. Canadian Union of Postal Workers. (Grievance #730-07-01912) was issued on March 21, 2012 and has not yet been reported. 1
  • WORKWISECanada Post regarded the posts as reprehensible, the posts within the realm of the workplace.grossly insubordinate, threatening, and openlydefiant and contemptuous of management. In her testimony, the Grievor repeatedly triedConsequently, the postal worker was discharged. to blame the posts on her alcohol use at home. Arbitrator Ponak placed little weight on theIn grieving the termination, the Union contended Grievor’s claim that she was drunk. The poststhat the Facebook posts were made primarily in were generally articulate and demonstrated aresponse to two incidents that occurred at the command of spelling and grammar and selectivepostal depot in the Fall of 2009: a staff meeting use of capital letters and punctuation, whichthat was called in order to address performance belied a lack of capacity. Additionally, there wasconcerns, and a confrontation that occurred on the no discernable difference between the postswork floor between the Grievor’s Superintendent made while at work, and those posted from home.and another co-worker. The Union asserted that Finally, the Arbitrator concluded that no defensethe posts were the result of provocation stemming of diminished capacity was available becausefrom these incidents and an allegedly hostile no medical evidence was led to establish thatworkplace created by the supervisors, and that the Grievor was incapable of knowing right fromalcohol was a contributing factor in the Grievor’s wrong.intemperate postings. While accepting that theGrievor’s posts constituted misconduct, the Union The Union mounted a provocation defense,maintained that the mitigating circumstances, arguing that the Grievor’s posts were a reactionincluding provocation, alcohol use and the to her Superintendant’s allegedly aggressiveGrievor’s seniority, as well as the absence of any management style. With respect to the firstreliance by the employer on a past disciplinary branch of the provocation test, which requireshistory, warranted lesser discipline. that the behaviour in question be objectively provocative, Arbitrator Ponak found that theArbitrator Allen Ponak found some of the posts Grievor’s Superintendant was neither physically“offensive and frightening” (57), noting that the aggressive, nor did she scream (although sheGrievor displayed “a degree of venom that is sometimes raised her voice), regularly useunmatched in other social media cases” (58). foul language, or engage in bullying behaviour. Accordingly, her conduct did not meet theThroughout the arbitration, the Grievor steadfastly threshold necessary because it would not deprivemaintained that she thought her Facebook an ordinary person of self-control. The secondposts were private. Arbitrator Ponak accepted branch of the defense, which requires that thethe Grievor’s evidence that she did not believe response be both proportional and proximate, washer posts would be publicly available on the also not established. In this regard, the evidenceInternet. However, he concluded that while her revealed that the Grievor was not directlymisunderstanding was a common one, it did not involved in most of the incidents involving herrelieve her of responsibility for the consequences supervisors about which she and her co-workersof her actions, which resulted in “significant harm to testified. Prior to the Fall of 2009, the Grievorthe targeted supervisors” (70). He found it reckless had minimal contact with her Superintendant.of the Grievor not to have considered how easily Consequently, Arbitrator Ponak concluded thatthe posts could be disseminated on the Internet. “the degree of character assassination” containedEven if the Grievor had engaged her privacy in the posts was entirely disproportionate in thesettings, the fact that several of her Facebook circumstances (69). Moreover, because thefriends were also her co-workers squarely brought Grievor posted on her Facebook wall numerous2
  • times over the course of one month, the postingscould not be characterized as an immediate andshort-lived display of emotion, and therefore, theimmediacy requirement of the defense was notestablished.The fact that the Grievor was “remarkablyunrepentant” contributed to Arbitrator Ponak’sfinding that reinstatement was not a viable optionin these circumstances. Although she did tendera written apology, the Arbitrator interpretedthis document, and the Grievor’s testimony, asshowing regret at the fact that the posts had beendiscovered, rather than demonstrating a sincereunderstanding of the consequences of her actionsand displaying any genuine contrition.The Union emphasized the Grievor’s long servicewith Canada Post, and the fact that she was justa few years away from pension eligibility, arguingthat this was a strong mitigating factor justifyinga lesser penalty. Nevertheless, Arbitrator Ponakconcluded that discharge was appropriatebecause an employee’s long service alonecannot provide immunity for gross misconductthat involves “threatening language, vile insultsand the debasement of an identifiable manager”(58).This decision confirms the principle that materialposted by employees on social media websitesthat, through their recklessness, is “publicly DISCLAIMERdisseminated and destructive of workplace Workwise is a commentary on current legal issues in the employment and labourrelationships” can result in substantial discipline area and should not be interpreted as providing legal advice. Consult your legal advisor before acting on any of the information contained in it. Questions,(56). In upholding Canada Post’s decision to comments, suggestions and address updates are most appreciated and should be directed to:discharge the Grievor, Arbitrator Ponak found that Kevin Feth in Edmonton 780-423-7626the offensive nature of the Facebook posts, the or Frank Molnar in Calgary 403-232-1782significant harm caused to the two supervisors,and the Grievor’s lack of acknowledgement of her REPRINTS Our policy is that readers may reprint an article or articles on the conditionwrongdoing supported termination. that credit is given to the author and the firm. Please advise us, by telephone or e-mail, of your intention to do so. EDMONTON CALGARY YELLOWKNIFE 2000, 10235 - 101 STREET 400, 604 - 1 STREET 201, 5120 - 49 STREET EDMONTON AB T5J 3G1 CALGARY AB T2P 1M7 YELLOWKNIFE NT X1A 1P8 PH 780 423 3003 PH 403 260 8500 PH 867 920 4542 FX 780 428 9329 FX 403 264 7084 FX 867 873 4790 WWW.FIELDLAW.COM 3