Canadian HR Reporter

CANADIAN HR REPORTER November 2, 2015 EMPLOYMENT LAW 5 Life's brighter under the sun GROUP BENEFITS | GROUP RETIREMENT SERVICES | INDIVIDUAL INSURANCE AND INVESTMENTS © Sun Life Assurance Company of Canada, 2015. Sun Life-Ivey Canadian Wellness ROI Study — Preliminary Learnings and the Future of Wellness November 12, 2015 Presenting the webinar will be Jennifer Elia from Sun Life Financial and Professor Michael Rouse from the Ivey Business School at Western University Register for this FREE webinar at: http://cpdcentre.ca/hrreporter Jeffrey Smith Legal View Online posts disparaging customer not enough for dismissal in B.C. Worker had good record, was remorseful A British Columbia worker's angry online posts about his employer's biggest cus- tomer were not sufficient cause for dis- missal, an arbitrator has ruled. Maxam Bulk Services is a manu- facturer and distributor of explo- sives to clients in the mining in- dustry. Based in Salt Lake City in the United States, the company's Canadian branch is based in Brit- ish Columbia. Ninety per cent of Maxam's business in Canada was for one customer — B.C.-based Teck Coal —making it Maxam's largest customer globally. Sheldon LeBrun was a bulk truck driver and spare lead hand for Maxam at Teck's Greenhills Mine. His truck driver duties in- volved loading trucks with chem- icals and transporting them to mines, while his spare lead hand duties involved recording any safety concerns or deficiencies at the mine. He made such reports on a daily basis. In 2014, LeBrun recorded that an electric gate at the site silo was malfunctioning. e gates were meant to keep wandering ani- mals away from the silo and the electric connection to one of them had been severed during 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 en- closure through the broken gate and consumed chemicals, which killed them. The next day, Le- Brun was golfing when he re- ceived a phone call from his su- pervisor telling him the news. LeBrun mistakenly got the im- pression Teck was blaming his company, Maxam, for the sheep deaths, when in fact it was Teck who had failed to repair the gate. Top customer upset with online remarks On July 18, Teck's general manag- er for the Greenhills mine called Maxam's vice-president in B.C. to tell him about "uncompliment- ary" Facebook comments written by LeBrun. e general manager was upset. Maxam's vice-president ac- cessed Facebook and was able to read the comments, though he wasn't a "friend" with LeBrun on the site. e posts began with LeBrun commenting on someone else's Facebook wall where a news ar- ticle about the sheep deaths had been posted on July 16. e com- ment said, 'Teck never takes re- sponsibility over anything." More comments were posted back and forth and LeBrun also posted that Teck wasn't serious about anything. The next day, 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 comments followed, including LeBrun saying they should change his company's name to "Maxam Bulk Sheep Kill- ers" and other comments. As the discussion continued under LeBrun's comment, his friends — including one who had previously worked at Maxam — talked him down a bit. LeBrun ultimately 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." Teck's general manager was up- set about what he perceived to be disparaging remarks about Teck, particularly since the company was still investigating what had happened. Apology forthcoming 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 pub- lic 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 re- ceived the call. He admitted it was too late by then, but he wanted "to get the posts down." He also acknowl- edged he had "put the company in jeopardy" by antagonizing its main customer. LeBrun said he had been frus- trated and angry over Teck's failure to fix the broken gate, re- sulting in the dead sheep, and he wrote it out online as a way of venting his anger. He said he didn't think it would end up the way it did and later changed his profile setting to pri- vate and deleted the posts. He also acknowledged he was in "big trouble." LeBrun accepted the opera- tions manager's advice and took four days of vacation time. e operations manager inquired about a formal apology, but Teck didn't respond. On July 24, Maxam suspended LeBrun indefinitely while man- agement discussed his fate. Maxam management was sur- prised by the comments, as Le- Brun hadn't done anything like it before, but the posts were made over a period of time and couldn't be considered a spur-of-the-mo- ment occurrence. Maxam felt LeBrun had dam- aged its relationship with its most important customer, damaged its own reputation and slandered his supervisor. e company believed it couldn't trust him anymore and terminated his employment on July 31, 2014. Mitigating factors e arbitrator noted several fac- tors mitigating the seriousness of LeBrun's misconduct. One was that he was known to be a good employee and not prone to the type of angry ranting he did on Facebook over the sheep incident — Maxam management was sur- prised when they found out. Over the course of his four-and- a-half years of employment with Maxam, this was an isolated inci- dent. Maxam argued that because the outburst came out of nowhere, it was difficult to be confident it wouldn't happen again, but the arbitrator disagreed, saying this made it likely it would not hap- pen again. e arbitrator found LeBrun's misconduct was serious and had no provocation, which was a rea- son for concern. However, LeBrun demonstrat- ed significant remorse afterwards. ough he didn't immediately remove the posts and had made them over a period of a few hours, LeBrun removed them once he realized their impact. He offered to apologize to Teck and said it wouldn't happen again. This made it likely he could learn from the mistake of his an- gry outburst, said the arbitrator. "Given his apologies, his re- morse, the fact he understood what all the concern was about, and that he recognized the danger that his diatribe had visited on his own company and its employees, I conclude (LeBrun) has presented as a good candidate for the ben- efits of progressive discipline," the arbitrator said. e arbitrator also noted that after the initial Facebook com- ments, LeBrun added some com- ments discussing the positives of working for Maxam, so they weren't all negative. e employment relationship was still viable, said the arbitrator, who ordered Maxam to reinstate LeBrun without loss of seniority. e time period since his dis- missal would be treated as a disci- plinary suspension, so there would be no compensation for lost pay. For more information see: • Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, 2015 Car- swellBC 2277 (B.C. Arb.). Jeffrey R. Smith is editor of Canadian Employment Law Today. For more information, visit www.employment- lawtoday.com. Facebook CEO Mark Zuckerberg speaks on stage at Facebook's headquarters in Menlo Park, Calif., on Sept. 27. Posts on the popular site are increasingly getting employees in trouble, as seen recently in a B.C. case. Credit: Stephen Lam (Reuters)

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