The Grievor was a Tallyman in the employer's (Corner Brook) shipping department. She had 13 years of service with her only discipline being a one-day suspension for insubordination about 18 months prior to her dismissal. Following an incident in the workplace where the Grievor had failed to follow her supervisor's safety instructions, she posted a message on Facebook. In the posting she complained that the employer was not concerned with the safety of its employees. She also identified the two supervisors involved in the incident by name. She used vulgar language in the post while making racist and sexual references to the supervisors. She also implicitly threatened that either she or friends of hers would torture or kill the supervisors. The Grievor's Facebook profile stated that she worked for Corner Brook. When confronted with the post, the Grievor acknowledged writing it and posting it, expressing no remorse at having done so. The supervisors identified in post reported the issue to the police, though no charges were laid.

The Union, on behalf of the Grievor, argued that there were mitigating circumstances that made discharge inappropriate. The Grievor had a history of depression and had recently stopped taking antidepressants. The grievor testified to having psychotic thoughts after going off the medication. She claimed that she had no recollection of writing the Facebook message, though she acknowledged that it must have been her.

The arbitrator rejected the Grievor's testimony, concluding that a post as well-structured and organized as the one in question was not consistent with a "crazy and delusional" individual. Given the Grievor's disciplinary history and the severity of the comments in the Facebook post, the arbitrator concluded that the mitigating factors of years of service and even mental health problems were not sufficient to justify substituting other discipline in place of termination. The arbitrator also weighed the fact that the supervisors were identified by name and suffered as a result of the posts, as well as the comments made against the employer itself. In all of the circumstances, the dismissal was upheld and he grievance dismissed.

This decision is part of a growing arbitral jurisprudence across Canada in which employers have been found justified to take disciplinary action, including termination, in response to disparaging or inappropriate comments of employees made on Facebook and other social media websites. In order to justify discipline up to and including termination, employers must generally establish that the employee's conduct harms the interests of the employer or other employees. This could include reputational harm. When internet postings specifically identify the employer or individual supervisors, and make disparaging remarks that can harm their reputation, discipline will be warranted. Threatening remarks will also justify a serious disciplinary response, as part of the employer's responsibilities to maintain an environment free of harassment and workplace violence. Arbitrators are also increasingly prepared to support employers in protecting other employees who are targeted in the online postings. This type of bullying, which has a nexus to the workplace, will also justify a disciplinary response from employer. The moral of the story is that, in Canadian law, Facebook and social media is not an "employment free zone" and employees can face employment consequences for unsavoury posts designed to harm their colleagues or employers.

Note: This a reprint of an article by Michael Torrance of Norton Rose Fulbright Canada LLP.