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 investigation.

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 employer.

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 workplace policies/training.

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 harassment.

Note: This a reprint of an article by Andrew Cogswell of CCPartners.