Employers have been keenly interested in case law involving the use of social media by employees. There is an obvious reason for this: while employers have little control over an employee’s use of Facebook, Twitter, etc., these applications can be used to broadcast confidential company or client information, to harass and intimidate co-workers, or to undermine an organization’s reputation.
Arbitrators and other adjudicators have begun to acknowledge that postings on Facebook and other social media can have serious and lasting consequences on the workplace. In Tenaris Algoma Tubes Inc. and USWA, Local 9548 (2014) 119 C.L.A.S. 57, a recent Ontario arbitration, the grievor (“D”) had a minor disagreement with a co-worker (“X”) at work, then, following his shift, posted a number of derogatory comments on Facebook, which the arbitrator described as follows:
After the shift, sometime between 11:00 p.m. and 1:00 a.m., D went on Facebook and complained about his “stocker”. Some work colleagues who were Facebook friends responded. D did not identify X by name but referred to a distinctive physical characteristic and said that would tell them who she was. Another employee, P, then suggested performing a physically aggressive act with that characteristic. D agreed with the comment and added the further suggestion that a violent and humiliating sex act be inflicted upon X. He used a slang term for the act. P wrote “hahaha” and said that D was funny. The grievor then mentioned a cruel nickname associated with X’s personal characteristic. The grievor’s last comment about X was approximately two hours after the first one.
Another co-worker brought the postings to the attention of X, who immediately complained about the comments. The grievor did not have any privacy settings on his Facebook page and the labour relations personnel were able to access his page to review the comments. The Chief Steward was informed about the posts, and later that morning (before the grievor came into work) he took down the posts.
Although the grievor was apologetic and had removed the posts, the employer determined that termination was warranted because of the violent and aggressive nature of the comments.
Relevant to the arbitrator’s decision to uphold the termination were the following findings:
- the nature of the comments were threatening. In particular, the grievor suggested that X should be sexually assaulted;
- The grievor must have anticipated that X would see the posts or hear about the posts because his Facebook friends included co-workers and he did not have any privacy settings;
- The grievor’s comments were not made in the heat of the moment following his disagreement with the co-worker. Rather, the comments were made at home and he had time to consider his words. The worst comment came two hours after his initial posting about X; and
- Although the grievor did not identify X by her name, he referred to a personal characteristic and a nickname. This was done in order to hurt her and to make her identifiable to her co-workers.
Although the grievor’s Facebook activity was conducted in the grievor’s own home after work hours, it was not “off duty” conduct “because it was directed at poisoning X’s work environment”.
There was initially some uncertainty as to whether arbitrators would view an employee’s harassing and threatening conduct on Facebook and other social media as harshly as they would have viewed such conduct if it occurred in the workplace. As is demonstrated by this case, it is increasingly apparent that arbitrators are alive to the significant and lasting consequences of cyber bullying and harassment and are prepared to uphold terminations for such conduct.