Toronto (City) v Toronto Professional Fire Fighters' Association, Local 3888 (Bowman Grievance)

The Grievor had been a firefighter for two and a half years when the National Post reported his "sexist, misogynistic, racist" and generally offensive tweets. While these tweets were made while the Grievor was off-duty, he did identify himself as a Toronto Firefighter on Twitter, complete with a picture in uniform.

During the employer's preliminary investigation, the Grievor issued an immediate apology letter which stated "there is simply no excuse for what [he] wrote" and claimed that he did not know his tweets could be made public. The grievor also denied making any additional similar offensive tweets.

However, upon further investigation, the employer uncovered a number of other offensive tweets and the Grievor was terminated on the basis that he violated a number of employer policies, including its social media policy, and damaged its reputation, particularly with regards to the diversity initiatives that it had been trying to implement.

In assessing the termination, Arbitrator Elaine Newman adopted a modified version of the oft-cited test for discharge for off-duty conduct as stated in Re Millhaven Fibres Ltd. v. Atomic Workers Int'l Union, Local 9-670, [1967] O.L.A.A. No.4, which requires an employer to show that:

1. The conduct of the grievor harms the Company's reputation or product;
2. The grievor's behaviour renders the employee unable to perform his duties satisfactorily;
3. The grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him;
4. The grievor has been guilty of a serious breach of the Criminal Code (or of a Human Rights Policy or Code)and thus rendering his conduct injurious to the general reputation of the Company and its employees;
5. The impugned conduct places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

In upholding the termination, the arbitrator noted that any one of the above factors, if severe enough, may warrant discipline or discharge. The arbitrator found the tweets to be offensive and agreed with the employer that it was damaging to its reputation and a serious violation of a number of policies.

Further, the arbitrator found little value in the grievor's immediate apology, because his testimony throughout the hearing tried to excuse, minimize and rationalize his conduct. She also rejected his assertion that his tweets were private. Ultimately, the arbitrator decided that a reasonable fair minded person would conclude that the damage he caused to his employer's reputation rendered his continued employment untenable, particularly because the grievor brought dishonour to the uniform by failing to appreciate the high standards required of a firefighter.

Toronto (City) v Toronto Professional Fire Fighters' Association, Local 3888 (Edwards Grievance)

The second firefighter was also terminated when his offensive tweet appeared in the same news stories as the above grievor. However, unlike the previous decision, the Grievor in this case was reinstated and a three-day unpaid suspension was substituted for his termination.

In deciding that reinstatement was appropriate, the arbitrator considered that:

• while the Employer had policies regarding the use of social media, it had not publicized those policies as well as it might have done given the wide-spread use of such media;
• the tweet was not directed at anyone in the workplace;
• the tweet appears to have been an isolated incident;
• the circumstances were at the low end of the spectrum of unacceptable behaviour;
• the tweet was not an attempt to challenge the Employer's efforts at creating a more inclusive and welcoming workplace for women;
• the Grievor had a clean record at the time of the termination;
• no employee ever complained about or objected to the tweets;
• the grievor apologized a number of times to the employer and his colleagues.

Conclusions

While the different outcomes are largely a result of the different facts involved in each case, this reinforces the fact, that, like all transgressions warranting discipline, there is no one-size-fits-all approach to addressing the inappropriate use of social media.

However, as we have previously recommended, your organization needs a social media policy. The media coverage has made it clear that the reputation of an employer or institution can be tarnished by actions of a rogue employee. Having a social media policy allows employers to clearly communicate to employees what constitutes appropriate use of social media, which in turn becomes the foundation for any necessary action, including termination.

Note: This a reprint of an article by Matthew Demeo of McCarthy Tetrault LLP.