Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends 6 | October 14, 2015 Cases and Trends « from ONLINE on page 1 Employee's angry rant was unexpected Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as acceptance of job offers, employee Internet use, reasonable notice, and employees on social media. You can view the blog at www.employmentlawtoday.com. gate at the site silo was malfunctioning. e gates were meant to keep wandering animals away from the silo and the electric connec- tion to one of them had been severed dur- ing a heavy snowfall. In 2010, several sheep had died after consuming chemicals at the site, leading to the installation of the gates. LeBrun kept reporting this issue for several months, but nothing was done. On July 15, 2014, several sheep were able to get into the silo enclosure through the broken gate and consumed chemicals, which killed them. e next day, LeBrun was golfing when he received a phone call from his supervisor telling him the news. He mistakenly got the impression that Teck was blaming his compa- ny, Maxam, for the sheep deaths, when it was Teck who had failed to repair the gate. On July 18, Teck's general manager for the Greenhills mine called Maxam's vice- president in B.C. to tell him about "uncom- plimentary" Facebook comments written by LeBrun. e general manager was upset. Maxam's vice-president accessed Facebook and was able to read the comments, though he wasn't a "friend" with LeBrun on the site. e posts began with LeBrun comment- ing on someone else's Facebook wall where a news article about the sheep deaths had been posted on July 16. e comment said, 'Teck never takes responsibility over any- thing." More comments were posted back and forth and LeBrun also posted that Teck wasn't serious about anything. e next day, July 17, LeBrun had posted on his own Facebook page the following: "F- -- y-- Teck Coal, thanks for once again not taking full responsibility of what goes on on the mine site and blaming the contractors like you are so famous for doing. F--- me I need a life change, like getting out of this goddamn valley where everything wouldn't evolve around Teck f----ers." Further com- ments followed, including LeBrun saying they should change his company's name to "Maxam Bulk Sheep Killers" and other vul- gar comments. As the discussion continued under LeBrun's comment, his friends — in- cluding one who had previously worked at Maxam — talked him down a bit, LeBrun ul- timately posted that "Maxam is not that bad, I love the work I do, I just hate 95 per cent of everything else that comes with." Top customer upset with online remarks Teck's general manager was upset about what he perceived to be disparaging remarks about Teck, particularly since the company was still investigating what had happened. Maxam's operations manager spoke with LeBrun and told him everyone was angry about his Facebook comments and they didn't know what to do about it. LeBrun said he didn't realize his account was viewable by the public and he was remorseful. He asked if it would help to make a formal apology to Teck and the operations manager said he would ask the appropriate people. LeBrun also told him he had taken the posts down after he received the call. He admitted it was too late by then, but he wanted "to get the posts down." He also acknowledged he had "put the company in jeopardy" by antagoniz- ing its main customer. LeBrun said he had been frustrated and angry over the failure of Teck to fix the bro- ken gate, resulting in the dead sheep, and he wrote it out online as a way of venting his an- ger. He said he didn't think it would end up the way it did and later changed his profile setting to private and deleted the posts. He also acknowledged he was in "big trouble." LeBrun accepted the operations manager's advice and took four days of vacation time. e operations manager inquired about a for- mal apology, but Teck didn't respond. On July 24, Maxam suspended LeBrun indefinitely while management discussed his fate. Maxam management was surprised by the comments, as LeBrun hadn't done any- thing like it before, but the posts were made over a period of time and couldn't be con- sidered spur-of-the-moment. Maxam felt LeBrun had damaged its relationship with its most important customer, damaged its own reputation and slandered his supervi- sor. e company believed it couldn't trust him anymore and terminated his employ- ment on July 31, 2014. e arbitrator noted several factors miti- gating the seriousness of LeBrun's miscon- duct. One was that he was known to be a good employee and not prone to the type of angry ranting like he did on Facebook over the sheep incident — Maxam management was surprised when they found out. Over the course of his four-and-one-half years of employment with Maxam, this was an iso- lated incident. Maxam argued because it came out of nowhere, it was difficult to be confident that it wouldn't happen again, but the arbitrator disagreed, saying this made it likely it would not happen again. e arbitrator found LeBrun's misconduct was serious and had no provocation, which was a reason for concern. However, LeBrun demonstrated significant remorse after- wards. ough he didn't immediately remove the posts and made them over a period of a few hours, he removed them once he realized their impact. He offered to apologize to Teck and said it wouldn't happen again. is made it likely he could learn from the mistake of his angry outburst, said the arbitrator. "Given his apologies, his remorse, the fact he understood what all the concern was about, and that he recognized the danger that his diatribe had visited on his own com- pany and its employees, I conclude (LeBrun) has presented as a good candidate for the benefits of progressive discipline," the arbi- trator said. e arbitrator also noted after the initial Facebook comments, he added some com- ments discussing the positives of working for Maxam, so they weren't all negative. e arbitrator found the employment rela- tionship was still viable and ordered Maxam to reinstate LeBrun without loss of seniority. e time period since his dismissal would be treated as a disciplinary suspension, so there would be no compensation for lost pay. For more information see: • Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, 2015 CarswellBC 2277 (B.C. Arb.). The employer felt the worker had damaged its relationship with its most important customer and its own reputation.

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