Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Employee's status changed to unemployed after online comments THIS INSTALMENT of You Make the Call involves a worker who was fi red for posting comments about a co-worker on Facebook. e employee was a crane operator for Tenaris Algoma Tubes, a manufacturer of tubing for the oil and gas industry in Sault Ste. Marie, Ont., since 2010. Typically, he worked as part of a crew where someone operated the crane and others worked as stockers of product. On Feb. 24, 2014, the employee was operating the crane while a female co- worker was serving as a stocker and signaling him as to where to move the crane. Early in the shift, the employee called the team leader and told him the female co- worker wasn't following procedures. He also said he wouldn't continue working until someone spoke to her. e team leader spoke to the co-worker, who said the employee was also not following procedures. e team leader asked her if she wanted to be moved to a diff erent crew, but the co-worker said she wanted to stay. e team leader told her to follow procedures and to let him know if she had any problems with the employee. e two of them worked together for the rest of the shift without complaint. After the shift was over, the employee went on Facebook between 11 p.m. and 1 a.m. and posted a comment complaining about his "stocker." Other Tenaris employees who were Facebook friends with him posted comments as well. e employee didn't identify his co-worker by name, but he referred to a distinctive physical characteristic and said that should indicate who it was. Another Tenaris worker suggested performing a physical act with the female co-worker's characteristic and the employee agreed with it. He also suggested doing a violent and humiliating act on the female co-worker and used a cruel nickname based on her physical characteristic, about two hours after his initial comment. e female co-worker found out about the comments and viewed the employee's Facebook page, which was open for anyone to view. She complained the next day to the industrial relations department. She was in tears and showed them the Facebook posting, explaining she had been teased about her physical characteristic when she was young and was sensitive about it. e female co-worker started her shift but had to go home early because she was upset. e industrial relations co-ordinator and analyst went on Facebook and viewed the employee's comments. e employee soon removed them from his page. e industrial relations team met with the employee and his union representatives that day. e employee apologized and said he was embarrassed so he deleted the posts. He off ered to apologize to his co-worker but was told she was upset, so it wouldn't be a good idea at that time. e employee also said it would never happen again. e company investigated, though it didn't interview the employee regarding what had happened that would prompt such comments, nor did they ask for a written statement from the employee. Upon completion of the investigation, the employee was dismissed eff ective March 3, 2014, for online harassment of his co-worker that was contrary to Ontario's Bill 168, Tenaris' anti-harassment policy and the collective agreement. A grievance meeting was held two weeks later in which the employee presented a letter of apology to both the company and the female co-worker, but Tenaris maintained his misconduct was serious enough to warrant termination. Another worker who had commented on the Facebook posting received a 10-day suspension. YOU MAKE THE CALL Was dismissal to extreme a punishment for the online comments? OR Was there just cause for dismissal? IF YOU SAID there was just cause for dismissal, you're right. e arbitrator found the comments were "vicious and humiliating" and "it would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened," as the employee suggested she be sexually assaulted. Since the employee was Facebook friends with several other Tenaris employees, he should have expected the female coworker would hear about or see the comments. In addition, the references to the co-worker's physical characteristic "could only have been made to hurt her," the arbitrator said. e arbitrator also found what happened during their shift that day had no relevance as it had seemingly been resolved and it was still no excuse for such comments which were "completely out of proportion to the is- sue between them." e employee should have known that sexual harassment was contrary to not only Tenaris policies, but also Bill 168 and the Ontario Human Rights Code, and publi- cizing such comments constituted harass- ment, particularly since he knew other Te- naris employees would see them, said the arbitrator. ough Tenaris didn't interview the em- ployee, the arbitrator found the employee could have off ered an explanation at the meeting and it was unlikely it would have mitigated his behaviour. See Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D.), Re, 2014 CarswellOnt 8009 (Ont. Arb.).

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