The crane operator was unhappy with the performance of a female co-worker whose job included signaling to him while he operated the crane. When he went home after work that night, he went on Facebook and complained about his co-worker. Although he did not name her, he used her nickname and references to her appearance that made her readily identifiable to other employees.

After reading the Facebook post, another employee suggested, in the words of the arbitrator, "performing a physically aggressive act" against the female co-worker. The arbitrator then said that the crane operator agreed with that comment and "added the further suggestion that a violent and humiliating sex act be inflicted upon" the female co-worker.

The Facebook posts were not protected by any privacy setting and they were read by fellow employees. Within a few hours, the female co-worker became aware of the statements being made about her on Facebook. She was understandably very upset and reported the matter to the company on the following day.

When the company called the crane operator in as part of its investigation, he immediately apologized, said that he was embarrassed by what he had done, and reported that he had deleted the Facebook posts. He said that he wanted to apologize to his female co-worker. He said that he did not want to lose his job and that he would never engage in such behaviour again.

Employee's Apology and Regret Not Enough

Despite his willingness to apologize and his expression of regret, the company decided to terminate his employment. It was the view of the company that the degrading and violent suggestions in the Facebook posts were made over a two-hour period and, therefore, were not made in a moment of anger. The company also noted that, as result of the discussions on Facebook between the crane operator and other employees, he knew that he was making inappropriate comments to an audience of fellow employees.

The employer relied on its obligations under the Human Rights Code and the Occupational Health & Safety Act ("OHSA") to provide a workplace free of harassment of other employees.

The union's position at the arbitration was that the crane operator should be reinstated because he had demonstrated his remorse by apologizing immediately and taking down the Facebook posts. The union said that he was unlikely to reoffend.

Arbitrator's Decision Showcases Seriousness of Social Media Posts

The arbitrator concluded that the Facebook posts were "vicious and humiliating" and noted the comments had not been deleted until 10 hours after they were made. The arbitrator further noted that the crane operator had only been employed for 3 1/2 years which she characterized as a "relatively short period of time ... (that) can only be a minor mitigating factor."

Finally, the arbitrator decided that progressive discipline did not have to be followed in this case. She stated that "some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job". She upheld the termination on the basis that the company was responsible under the Human Rights Code and OHSA, as well as the collective agreement, for maintaining a workplace free of harassment and that reinstatement of the grievor would be "contrary to that goal".

This case is a further example of the ability of employers to discipline employees on the basis of their posts on Facebook or other social media. It also demonstrates the seriousness with which arbitrators view such social media attacks on co-workers.

Note: This a reprint of an article by Larry Page of DLA Piper.