It is no secret that social media platforms are changing the way we communicate, the way we inform ourselves, and the way we do business. In fact, the growth of these platforms has been nothing short of phenomenal.
However, social media has also created new challenges for employers. To assist you with these new challenges, we draw your attention to two recent cases.
Toronto (City) v Toronto Professional Firefighters Association, Local 3888 (Bowman)
The grievor was employed as a firefighter for approximately two-and-a-half years. During this time, he made a series of comments on his Twitter account that were sexist, misogynistic, racist, and generally offensive. The grievor claimed not to know that his tweets could be accessed by members of the public. He learned otherwise when the National Post featured several of his posts in an article, which identified both the grievor and his employer.
After an investigation uncovered a number of other offensive tweets, the grievor was terminated on the basis that his conduct was contrary to the City of Toronto and Fire Services policies and had harmed his employer’s reputation.
Since the conduct took place off-duty, the arbitrator considered the test set out in Re Millhaven Fibres Ltd. v Atomic Workers International Union, Local 9-567 (“Millhaven“), which requires the employer to show that:
a) the conduct of the grievor harms the Company’s reputation or product;
b) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily;
c) the grievor’s behaviour leads to refusal, reluctance or inability of other employees to work with him;
d) the grievor has been guilty of a serious breach of the Criminal Code, rendering his conduct injurious to the general reputation of the Company and its employees; and
e) the conduct makes it difficult for the Company to properly carry out its function of efficiently managing its business and directing its employees.
It is generally accepted that the Millhaven factors do not all need to be satisfied in any given case to justify serious discipline. If it is severe enough, conduct giving rise to any one factor may warrant discipline or even discharge.
The arbitrator agreed with the employer’s reasoning and upheld the dismissal on the grounds that the grievor’s tweets violated a number of policies and damaged the reputation of the employer. Interestingly, the arbitrator seemed to hold the grievor to a higher standard than the average employee because he was a firefighter, stating:
The job involves more than attending at a fire, or attending as the first responder when someone calls 911 for a medical emergency. It involves more than performing the life saving interventions that he has learned and practiced. The other part of the job, the part that I am not convinced he can perform to satisfaction, is the part that requires him to conduct himself in a way that brings honour to the uniform. I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.
Toronto (City) v Toronto Professional Firefighters Association, Local 3888 (Edwards)
A second firefighter was also dismissed after two-and-a-half years of service when one of his misogynistic tweets was featured in the National Post article. In the publicized tweet, the grievor suggested giving a woman a “swat in the back of the head” to “reset her brain”. Two other offensive tweets came to the employer’s attention during its investigation, leading to the grievor’s termination from employment.
The arbitrator reviewed the three tweets and found that only the comment reproduced by the National Post was truly inappropriate. In making the decision to reinstate the employee and reduce his discharge to a three-day unpaid suspension, the arbitrator reviewed the Millhaven factors and noted the following:
a) while the employer had policies regarding the use of social media, it had not publicized those policies as well as it should have given the widespread use of such media;
b) the tweet was not directed at anyone in the workplace;
c) the tweet appears to have been an isolated incident;
d) the circumstances were on the “low end of the spectrum of unacceptable behaviour”;
e) the grievor had a clean record at the time of the termination;
f) there was no evidence that any of the people who followed the grievor on Twitter objected to or complained about his comments; and
g) the grievor lacked understanding that his tweet was inappropriate, insulting to women, and offensive because it appeared to encourage the physical abuse of a female.
Discharge or Discipline?
We have two very similar cases above, but two distinct outcomes. Despite the fact that both grievors violated the employer’s policy and damaged its reputation, only one dismissal was upheld while the other was reduced to a minor suspension.
Unlike in the Bowman grievance, Edwards’ misconduct was on the low-end of the spectrum of unacceptable behaviour. He accepted responsibility for the offence and appeared to be appropriately rehabilitated, and there was no evidence that any of the people who followed the grievor online objected to his comments.
Ultimately, the distinction lies in whether a reasonable and fair-minded member of the public, if aware of the facts, would consider the grievor’s continued employment untenable because of the damage it would have on the employer’s reputation. Whenever possible, an arbitrator will prefer to keep the relationship intact.
Lessons for Employers
a) Keep thorough documentation. Employers should remember that in discipline and discharge cases, the employer typically bears the burden of proving, on a balance of probabilities, that it had just and reasonable cause to either discipline or discharge the employee. Well-documented and thorough evidence will always be key.
b) Be vigilant with your policies. Social media and other similar policies can be used to put employees on notice of company expectations and the consequences of failing to meet those expectations. Document retention, discipline, and social media policies should always be easily accessible and should be frequently reviewed with employees.
c) Be aware of the context. If discipline is justified, consider all of the circumstances in determining whether discharge is appropriate, including the seriousness of the employee’s behaviour, whether it was premeditated or repeated, and whether the employee has been disciplined in the past. Serious, prolonged and premeditated misconduct – whether on social media or otherwise – should attract a more significant disciplinary response than isolated or momentary lapses of reasons.
d) Consider whether progressive discipline is appropriate. Unless the offensive comments are egregious to the point where they destroy the employment relationship, the employer might consider progressive discipline, rather than resorting immediately to discharge.