Canadian HR Reporter Weekly

3 Canadian HR Reporter, a Thomson Reuters business 2018 January 31, 2018 e information could also be related to a prohibited ground under the human rights code, said Preston Parsons, a lawyer at Overholt Law in Vancouver. "It leaves the employer open to a potential line of attack that the reason they made the decision to terminate or demoted somebody... was because of information they found which is prohibited to be considered." Determining discipline In determining discipline for this kind of situation, there are a variety of factors an employer should look at, said McKelvey. "You've got to look at the nature of the posts, the frequency of the posts, what is the nature of the employer's business, what type of position the employee holds…. is this an isolated incident, is there a pattern of this type of conduct, is it harassment, is it bullying, is it disparaging, are there safety risks… what does your policy say?" And in a non-union environment, establishing just cause before an employment standards tribunal or at common law is challenging, said McKelvey. "at is not to say social media posts have not resulted in cause. And most of the law in this area comes from the unionized environment, so there are very few wrongful dismissal suits related solely to social media expression, whereas there are a growing number of arbitration awards, some with particularly egregious conduct, that have justified term for cause." Arbitrators are going to look at mitigating factors in determining what was appropriate but, generally speaking, "that threshold (for just cause) is higher in a unionized environment than it would be," he said. In a union context, the employer has quite a high standard to meet for cause, said Parsons, "and when they're disciplining for off-duty conduct, they can't merely guess there's harm — they have to be able to point to actual harm that's been done." In this case, an arbitrator would be looking at the employee's conduct, the pictures she posted and whether they were taken on company property or in unsafe places or positions, and whether those photos are actually causing harm to CP, he said. "e arbitrator will determine if cause was proportionate in the circumstances, or whether or not a lesser form of discipline should be substituted, such as suspension or other things, because in a union context, in a collective agreement, there will be a series of escalated steps to take usually before cause." Other considerations include whether or not the behaviour renders the employee unable to perform duties in the future; and whether the behaviour leads to others refusing to work with or respect that person, said Parsons. "As a train conductor, she's obviously in a position of leadership and authority and needs to be able to hold a position of authority that people will look up to and respect, so if that is harmed, it'll make it difficult for her to function in her role." e employer can also rely on multiple pieces as cumulative cause, he said. "All these things could be a slap on the wrist potentially but altogether it adds up to… (looking at whether) the relationship of trust between employer and employee to be able to do the role and represent the company well, is that still there or not?" Since there is such a high standard to terminate for cause, particularly in the union context, a lot of employers opt to go the route of a severance offering, said Parsons, because "in many cases, it's just easier, it's more economical in the long run, unless something's truly blatantly egregious." And employers may want to consider potential backlash if the story goes viral, he said, as in this particular case: "ere's questions around whether or not CP is policing morality versus their own policies." With everybody online these days, employers should consider a strong social media policy that indicates to new employees they must be mindful of the reputation of the company, said Parsons. e policy should explicitly state what the employer will do if there's a breach, the ramifications, along with the rights of employees, said Shaw. "With CP… they obviously have a significant concern about safety so I would hope they have or will have a social media policy that refers specifically to safety, and that it would impact their reputation and legitimate business if there's pictures out there showing somebody doing something unsafe," he said. "If it's a well-written policy that's focused specifically on their business, and the real concerns they have around safety, then a breach of that policy would be really helpful in arbitration." In many cases, severance is just easier, more economical, unless something's blatantly egregious." Stephanie Katelnikoff's termination was related to her decision to post photos of herself in unsafe situations on railway property and equipment, along with disparaging remarks, said CP. Credit: Mark Zulkoskey (Shutterstock)

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