Question(s) to be Determined:Whether the postings made by employees on their personal Facebook pages created a hostile work environment and damaged the Employer’s reputation and business interests.
Findings:The British Columbia Labour Relations Board disagreed with the union and accepted that the employer had cause to terminate the employees on two grounds. First of all, the comments made by the complainants on Facebook were damaging comments about the employer’s business. Second, since the threatening and belittling comments posted about management personnel were able to be viewed by other employees who were also on Facebook, the Board accepted the employer’s argument that these comments are akin to comments made on the shop floor.
Reasoning: It was determined that the greivors did not have an expectation of privacy vis-à-vis their employer in the content they posted on their Facebook profiles and that the inclusion of other employees ultimately renders the conduct within the workplace. The comments were “offensive, insulting, and disrespectful” and the parties referenced could be identified and therefore this cumulatively amounted to insubordination.
Summary:Firing of two employees of a car dealership over crude, insulting and threatening Facebook comments made about their supervisor and manager and comments discouraging the public from doing business with employer upheld. In this case, the Union argued that the Employer did not have proper cause for dismissal and even if it did, the terminations were motivated at least in part by anti-union animus. Therefore, the Union charges that the Employer committed an unfair labour practice and the terminations should be rescinded by the Board. In conclusion, the Employer was found to not be motivated by anti-union animus. Furthermore, it was found that the comments were inappropriate and insubordinate and created a hostile work environment for co-workers and supervisors. It also said they were likely to damage the reputation and business interests of the Employer. As a result, the Employer was found to not have breached the Code and termination was deemed appropriate.
The Union alleges that the Employer breached Sections 5, 6 and 9 of the Labour Relations Code (the "Code") when it terminated the employment of two employees in the bargaining unit. The Employer asserts that it had proper cause to terminate the employment of the employees and therefore did not breach the Code. The Union says that the Employer did not have proper cause and even if it did, the terminations were motivated at least in part by anti-union animus and therefore the Employer committed an unfair labour practice and the terminations should be rescinded by the Board.
Some of the Facebook postings in question included the following:
• [J.T.’s status] “Sometimes ya have good smooth days, when nobodys fucking with your ability to earn a living....and sometimes accidents DO happen, its unfortunate, but thats why there called accidents right?”
• [J.T.’s status] “When a labour relations lawyer calls ya at 7PM and ya fax him 25 task sheets, ya gotta wonder??? Unfair labour practices, coupled with workplace harassment....C'mon Guys??? At least read up on the laws before ya throw the first punch...because that second punch can by a DOOZY....”
• [J.T.’s stuatus] “If somebody mentally attacks you, and you stab him in the face 14 or 16 times....that constitutes self defence doesn’t it????”
• [J.T.’s status] “Hhhmmmm??? According to this reprimand at work, Im confrontational & disruptive to the WHOLE shop ... AND .... My outburst yesterday was threatening and didn’t allow The WestCoastAutoGroup to conduct regular business.... well????All I Gotta say is they pissed off the WRONG GUY ....big time.”
• [A.P.’s status] “west coast detail and accessory is a fuckin joke....dont spend your money there as they are fuckin crooks and are out to hose you... there a bunch of greedy cocksucin low life scumbags... wanna know how I really feel??????”
A.P. denies making any of these postings on September 30, 2010. This critical evidentiary dispute will be dealt with in more detail below. A.P. also says he has had problems with his Facebook before when someone else posted things on it in his name. He said he changed his password.
On October 7, 2010, J.T. and A.P. were advised that their employment was terminated and were given letters setting out the reasons. They were terminated for making disrespectful, damaging and derogatory comments on Facebook. The Employer found the comments were inappropriate and insubordinate and created a hostile work environment for co-workers and supervisors. It also said they were likely to damage the reputation and business interests of the Employer. The Employer also relied on the Complainants' denials during the investigation meeting and said that they had compounded their wrongdoing by being dishonest during the interview.
The Employer submits that A.P.'s claim that a hacker, or someone else, made the September 30 posting on his Facebook is not credible.
The Employer submits that for J.T. this is not a momentary aberration. It escalated to the point of being unbearable for the Employer to not intervene. It says J.T. was extremely hostile and threatening. Concerning A.P., the Employer says his one posting was extremely egregious and he continues to lie and say he did not post it. It says in these circumstances, the Complainants cannot be returned to the workplace.
On a consideration of all the ETL factors, I find that the Employer was not motivated by anti-union animus. The fact that the Complainants had no previous discipline and the Employer knew they were key supporters of the Union does not outweigh the fact that the Employer had never encountered similar conduct, and the work offence was serious insubordination and conduct damaging to the Employer’s reputation. The manner of the Employer’s investigation was the most important factor to determine if there was anti-union animus in this case. However, for the reasons noted above, I find that it does not support a finding that the Employer was motivated by
I found A.P.’s testimony that a friend called him and told him there was harsh stuff on his Facebook to be believable. However, as set out in Faryna, the demeanour of a witness is not always a reliable indicator of the truth. When I consider the totality of the evidence, I find that he had the motivation and the opportunity to make the postings. I also find making his apology without saying at that time that someone hacked into his Facebook account leads me to conclude that A.P. made the Facebook posting on September 30, 2010. The comment was very egregious in that it named the Employer and attempted to encourage people not to spend money at the Employer's business. A.P. only made the comments on September 30 and therefore it is an isolated incident. He also apologized to F.Y. who was the person most personally insulted during the ensuing Facebook conversation. A.P. apologized the very next day before he was aware that the Employer knew about the posting. If A.P. had admitted the postings and been honest during the investigation meeting and these proceedings, my conclusion may have been different. However, the Employer found that the dishonesty in the investigation meeting compounded the misconduct and determined that it justified termination. I agree and find that there is proper cause for the termination of A.P.
I find the Employer has not breached the Code and dismiss the Union’s application.