Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 13: The Challenges of Social Media

In this meeting the HRLG discuss the challenges of social media in today's environment.  This session will look at how decision makers are defining what constitutes harassment when social media is part of the equation in both the educational and the workplace environment.

Guest Speakers

  • Neil Nearse, School of Buisness

Cases

Pridgen v. University of Calgary, 2010 ABQB 644 (CanLii), aff'd in part by 2012 ABCA 139 (CanLII)

Pridgen v. University of Calgary 2010 ABQB 644 (CanLii), aff'd in part by 2012 ABCA 139 (CanLII) (PDF, 104KB)

Question(s) to be Determined: Whether the comments made on Facebook by Keith and Steve Pridgen, regarding Professor Mitra constituted academic misconduct, as well as whether the applicants actions were protected as forms of freedom of expression under the Charter.

Findings:It was concluded that the Applicants' comments did not constitute academic misconduct and the Pridgen brothers' right to freedom of expression, under section 2(b) of the Charter, was infringed by the University of Calgary Review Committee. 

Reasoning: The decision to discipline was quashed based on the fact that the universities are not exempt from, and that these students were in fact protected under, section 2(b) of the Charter of Rights and Freedoms. This decision is noteworthy as it highlights the jurisdiction of the Charter in terms of both new media technologies, such as Facebook, and university institutions in Canada.

Both Applicants appealed the decision of the University and they raised numerous grounds, including: 

  • that there was a lack of jurisdiction because at the time of the alleged misconduct the complainant was not a member of the university community as required by the calendar;
  • that their actions did not constitute non-academic misconduct;
  • that there was no injury to the complainant demonstrated;
  • that the Appellants' conduct was protected by the Alberta Bill of Rights;
  • that the process involved bias; and
  • that the Review Committee breached the rules of natural justice and failed to conduct a fair and proper hearing.

Eight main issues to be determined by the court: 1. Does the Charter apply to the disciplinary proceedings taken by the Respondent? Yes.

I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter. In this case, neither the PSL Act itself or the University's Policy on its own offend the Charter. The issue to be determined is whether the manner in which the Policy was applied infringed the Applicants' Charter protected rights.

2. If so, were the Applicants' Charter rights infringed? Yes.

I cannot accept that expression in the form of criticism of one's professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If  Professor Mitra was concerned that she was being defamed, then she could have brought a civil action.

The University has not shown that the Review Committee's application of the Policy impairs the right to freedom of expression no more than is necessary. As such, I do not find that the Review Committee's application of the Policy can be justified using a section 1 analysis. I am satisfied that the Applicants' section 2(b) Charter rights to free expression were infringed by the Review Committee's decisions, that such infringement cannot be justified under section 1 of the Charter, and that these decisions must be set aside.

3. Were the actions taken by the University ultra vires the jurisdiction of the Province of Alberta? No.

The Applicants have not demonstrated that the PSL Act nor any act taken by the Respondent with respect to the findings of non-academic misconduct went beyond the administration of education.

4. Did the Board of Governors err in refusing to hear the Applicants' appeals? Yes.

If the GFC has the statutory authority to impose a form of discipline, the exercise of such authority is subject to a right of appeal to the board of governors, by virtue of section 31(1)(a).

5. Were the Applicants' denied a fair hearing? No.

On balance, I am satisfied that the Review Committee met the duty of fairness owed to the Applicants with respect to how the hearing was conducted by it

6. Did the Review Committee provide adequate reasons for its decisions? No.

The reasons given by the Review Committee are inadequate as they do not disclose the rationale for the decision but simply state a conclusion. There is no explanation provided to the Applicants to enable them to understand how their actions constituted non-academic misconduct or any guidance as to how they should govern themselves in the future. Moreover, it would be impossible for other students at the University to utilize the Review Committee's reasons as a benchmark for their own behaviour on campus. The lack of any explanation as to how the Review Committee determined that the Applicants' actions constituted non-academic misconduct makes meaningful review of its decision difficult.

7. Did the Review Committee err in concluding that the activities of the Applicants constituted non-academic misconduct?

No.

In my view, there was no reasonable basis, having regard to the evidence before the Review Committee, that would support the conclusion that the comments made by each of the Applicants on the Facebook Wall caused injury to Professor Mitra and that their conduct constituted non-academic misconduct within the meaning of the Policy.

8. What, if any, remedy should be granted to the Applicants:

As I have found that decision to have infringed the Applicants' Charter rights and have concluded that the Committee's finding that the Applicants' conduct constituted non-academic misconduct for which they should be disciplined constituted an unreasonable decision, I am of the view that the Review Committee's decision should be quashed and that this is not a case where the matter need be referred to the Board of Governor's Student Discipline Review Committee to consider an appeal from that decision. Although normal practice would be to correct the error and refer the application back to the administrative body, there is nothing to be gained from doing that in the present circumstances. The facts are not in dispute nor is the Board of Governor's Student Discipline Review Committee in a better position to decide the matters at issue. Hence, the decision of the Review Committee is quashed.

Frederick Zhang v. The University of Western Ontario, 2010 ONSC 6489 (CanLII)

Frederick Zhang v. The University of Western Ontario, 2010 ONSC 6489 (CanLII) (PDF, 36KB)

Question(s) to be Determined: Whether the off-campus postings made on Facebook by a first year law student violated the University of Western Ontario's Code of Student Conduct, and whether Mr. Zhang's Facebook postings were protected by his right of free speech guaranteed by the Charter.

Findings:First of all, the Code of Student Conduct expressly states that it applies to off-campus conduct, and thus the committee specifically found that the posting was not protected by Mr. Zhang's right to free speech as set out in Part I, s. 6 of the Code. Moreover, the committee found that the right of free speech guaranteed by the Charter did not apply to the Facebook message.

Reasoning:The Appeal Committee found that the postings constituted the type of speech that a reasonable person would view as intimidating or threatening, and therefore the right of free speech guaranteed by the Charter did not apply. In this case, it was concluded that free speech has its limits, including the making of threats and defamation of character.

The applicant was a first year law student at the University of Western Ontario. In the fall of 2007 complaints from students and professors regarding his in class behaviour came to the attention of the Dean of the Faculty of Law, Mr. Ian Holloway.  They were concerned about Mr. Zhang's conduct which included asking questions which were characterized by some as "unduly gruesome", "macabre", "frightening" and "graphic", including highly inappropriate references to individual students.  One such example involved a hypothetical question posed to a professor by Mr. Zhang in a criminal law class regarding a fellow female student becoming intoxicated and passing out, with Mr. Zhang positioning her in a way that made it very likely she would vomit, choke and die.  Mr. Zhang asked the professor if this would amount to murder or manslaughter.  Other students complained that while in the classroom, the applicant was watching videos posted on YouTube depicting terrorist activity and suicide bombings, including recommended methods to strap suicide bombs to one's person.  Also, while in class, he read texts about suicide bombings.

Mr. Zhang also controlled a Facebook page referring to himself as "Dr. Frank N. Stein".  He had 22 friends on Facebook.  A number of his postings were disturbing, including references to "Dr. is eating babies", "Go on a killing spree", "Dr. is free to observe torture without criminal liability", and "Dr. is learning how to get away with murder in his criminal law class".

 After considering the contents of a psychiatric report, and after consulting with the Chief of Campus Police, Dean Holloway permitted Mr. Zhang to return to law school at the end of November upon the strict conditions outlined in his e-mail, which stated:

"If there is any repetition whatever of the sort of behaviour that gave rise to my decision to suspend you in the first place, you will be immediately expelled from law school. If you have any doubt at all about the terms of our agreement, PLEASE LET ME KNOW WITHOUT DELAY for it will affect my decision to lift your suspension."

On March 3, 2008, a fresh complaint was made about Mr. Zhang's behaviour.

On March 20, 2008, the Dean informed Mr. Zhang in writing that he was expelled from the Faculty of Law.  Mr. Zhang appealed the decision on April 2, 2008 and was granted the right to an oral hearing by the University Discipline Appeal Committee. Mr. Zhang submitted that the Dean lacked authority to make a finding of misconduct or impose a sanction against him and that the finding of misconduct and sanction imposed were unreasonable or unsupportable on the evidence.  He submitted that his Facebook postings were off-campus and therefore, beyond the reach of the University's authority, and that in any event, his posting was protected by his right of free speech guaranteed by the Canadian Charter of Rights and Freedoms.

 The Appeal Committee issued a judgment denying Mr. Zhang's appeal on October 22, 2008:

  • Among its findings, the committee concluded that "a reasonable person would find the message posted by Mr. Zhang disturbing and threatening and would cause fear and apprehension among his classmates, particularly in light of the incidents that occurred in the fall of 2007, which according to the testimony of the Dean, had created a "climate of fear" in the law school."  In addition, it was clear from Mr. Zhang's fellow classmate Mr. R. that the message "upset and shocked him."   The committee found that the posting "did not amount to the intemperate remarks the first year law student posted in the heat of argument."  The committee specifically found that the appellant, prior to posting his message, considered whether the message would violate the Dean's conditions and decided it would not.
     
  • The committee specifically found that the posting was not protected by Mr. Zhang's right to free speech as set out in Part I, s. 6 of the Code.  The committee found that the section was not meant to permit the type of speech that a reasonable person would view as intimidating or threatening.  The committee referred to Part V, section 2 of the Code which lists "any assault, harassment, intimidation, threats or coercion" and "knowingly creating a condition that endangers the health, safety or well-being of a person" as examples a prohibited conduct.  The committee found that the right of free speech guaranteed by the Charter did not apply to the Facebook message.
University of Windsor Judicial Panel Decision No. JPH-12/13-10 issued Nov 8, 2012

University of Windsor Judicial Panel Decision No. JPH-12/13-10 issued Nov 8, 2012 (PDF, 63KB)

Question(s) to be Determined: Whether a series of tweets made by a nursing student directed at a fellow student and a faculty member amounted to a form of harassment, and whether these tweets were protected by the Charter as a student's right to freedom of expression.

Findings:While the tweets were found to be uncivil in nature, none of the tweets suggested a course of vexatious comment or conduct, and thus did not rise to a "serious enough" level to constitute harassment. Furthermore, it was found that the fourth tweet was saved under sub-section 2(b) of the Charter as an exercise of the student's freedom of expression

Reasoning: It was concluded that the Charter rights of students should not be infringed upon when the have some grain of commentary or criticism, even if they are in poor taste, unless they interfere with the ordinary function within the university, affect the integrity of the university program or department as a whole, or affect the integrity of the university as a whole.

  • Tweets 1-3 were deemed uncivil but not harassment
    • Tweet 1: I'd throw my cellphone at her but my cellphone is more valuable #worthlessbitch
    • Tweet 2: Not the first time she got an STD
    • Tweet 3: Of course she's going to volunteer to spread her legs wide #sluttyhoe
  • Tweet 4 constituted Charter-protected speech.
    • Tweet 4: our teacher showed up to class dressed like a fool, and is acting like a child #sosick #typicaldayinnursing

The student was charged with "posting uncivil/harassing comments about a fellow student & faculty member on Twitter". This conduct is alleged to be a violation of the Faculty of Nursing's Social Media Policy, the Student Code of Conduct, Senate Bylaw 31, and the various Practice Standards set out by the College of Nurses of Ontario (as incorporated into the Faculty of Nursing's program). The student pled not guilty during her first appearance on August 7th, 2012, and the matter was set down for a one (1) day trial.

There was no dispute that these tweets were made by, and posted from the Twitter account of the student. The student's account was "open" - anyone could view her tweets, even if they were not following her. They were, for all intents and purposes, publicly available. In terms of timing, the tweets were all within a two (2) hour span, and either made during Health Assessment II, course #63-176, or the course preceding it. In our analysis, we will separate the tweets based on their intended audience.

The fourth tweet was directed at the Professor. It was crude, insensitive and failed to adequately capture the context of the Professor's conduct. On the evidence, the Professor had informed the class that she would be role-playing an individual with organic brain disease. She dressed and acted accordingly.

Given this background, the student's comments were particularly distasteful and facile. However, we are guided by the decision in Pridgen v. University of Calgary, 2012 ABCA 139, where the Alberta Court of Appeal held that the "Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by [a] University" (ibid. at para. 128). The fourth tweet, as we have labelled it, is therefore saved under sub-section 2(b) of the Charter as an exercise of the student's freedom of expression. The quality of the expression is not for us to judge, but there does appear to be some "peppercorn" of expression that is protectable. Even if the "peppercorn" is debatable, the benefit of the doubt must fall to the student.

The first three (3) tweets were all directed at another student in the student's class. This was also not in dispute. Like the fourth tweet, these tweets were also crude, insensitive and failed to adequately capture the context that gave rise to them.

Taken together, these tweets amount to uncivil conduct. Given the specific context, timing, and a contextual crude equivocations contained within them, they meet the threshold of being "uncivil".

However, we do not find that these three tweets amount to harassment. None of these tweets suggests a course of vexatious comment or conduct. Nor do any of the tweets, taken individually, rise to a "serious enough" level to constitute harassment. Indeed, we generally doubt whether a single tweet could ever rise to this level (given the 140 character length), but given the ability to post pictures or link to other sites, we suspect that a scenario could be imagined or arise. Cases like this straddle a fine line between free speech and acceptable academic conduct.

Ultimately, the Orwellian threat of disciplinary charges for comments made on social media platforms (whether public or semi-public) that are alleged to be "uncivil", "unprofessional" or similarly nebulous grounds, should never take priority over students' right to freedom of expression insofar as those comments contain some "grain" of commentary or criticism - however crude, childish and distasteful - and unless that expression reasonably

Impinges upon: a. The ability of another person to carry out their ordinary functions at this University (be it a Professor, administrator, student or otherwise); b. The integrity of a particular University program or department, as a whole; or c. The integrity of the University as whole. This last ground would be rare, but it is still imaginable.

There does not need to be direct intent for any of the aforementioned items, as intent can also be reasonably inferred from the surrounding circumstances. Recklessness, indifference or willful blindness might also suffice.

Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (CanLII)

Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (CanLII) (PDF, 206KB)

Question(s) to be Determined:Whether racist Facebook comments made by en employee about her manager amounted to harassment under the Ontario Human Rights Code (the "Code").

Findings:The Tribunal upheld the complaint as it found that comments made by the employee about her manager over Facebook constituted harassment in employment contrary to subsection 5(2) of the Code.

Reasoning: The Tribunal confirmed that the protections under the Code extend to workplace-related postings on the Internet.

Summary:The employee made racist Facebook comments about her manager. The comments were deemed to amount to harassment in employment contrary to the Code. Consequently, employee was ordered to take human rights training.

This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin. 

On August 3, 2012, the respondent posted on Facebook that she had been written up at work for calling the applicant "a dirty Mexican". 

The applicant found the public posting and the applicant's derogatory comments humiliating and damaging to his character, work and personal life, and stated that they created a negative emotional, social, mental and possibly financial effect on him.  The applicant stated that his son's classmate asked his son if the respondent's post referred to the applicant. He stated he should not have to feel ashamed of his roots. 

Subsection 5(2) of the Code prohibits harassment in the workplace on the basis of race, origin, ancestry and citizenship.  Section 10(1) defines harassment as "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome". In Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1392 (CanLII), 2012 HRTO 1392 that the Code "may apply to workplace-related postings on the internet".  I agree.  I find the respondent's statements and actions in communicating them on Facebook amount to harassment in employment contrary to the Code.  The comments clearly were vexatious and related to an incident that occurred in the workplace.  The respondent knew or ought reasonably to have known her comments were unwelcome to the applicant. 

Given the seriousness of the respondent's conduct, and the applicant's humiliation and his real concern about how the respondent treats people of different nationalities and cultures, I find it appropriate to order the respondent to complete the Ontario Human Rights Commission's on-line training "Human Rights 101" within 30 days of this Decision.  The respondent will provide the applicant with written confirmation that she has done so upon completion of the course.

Alberta Union of Provincial Employees v. Alberta Health Services (Hajrallahu Grievance), [2012] AGAA No. 7 (Wallace)

Alberta Union of Provincial Employees v. Alberta Health Services (Hajrallahu Grievance), [2012] AGAA No. 7 (Wallace) (PDF, 987KB)

Question(s) to be Determined: Whether the kind of misconduct exhibited by the Grievor, the buttocks-slapping incident, the Facebook exchange, the Grievor's conduct towards co-workers, and his insolence toward his supervisor, constituted the abusive harassment of other people in his workplace.

Findings: It was found that although the Grievor's swatting the buttocks of the Complainant may have been technically within the Employer's meaning of "harassment" or "sexual harassment" as an act of unwelcome physical contact between man and woman, in character it falls toward the very low end of the scale of severity. In regards to the Facebook exchanges, this was characterized as mild to moderately serious misconduct, the Grievor's fault being mitigated somewhat by the shared fault of the Complainant in causing the insults to spiral out of control. Taken together, it is was concluded that the incident justifies discipline, but not discharge. Therefore, the grievance was upheld and grievor was reinstated without compensation.

Reasoning: It was found that while the Facebook posts were initiated off-duty and largely through private messaging, they did constitute work related conduct, emphasizing that exchanges between co-workers are work-related conduct regardless of where the communication occurs.

Edmond Hajrallahu was a 0.5 FTE regular part-time clerical employee of Alberta Health Services classified as Administrative Support III. He worked in the Department of Patient Information at the Tom Baker Cancer Centre in Calgary, where he performed general clerical and record keeping duties. On October 6, 2009 his employment was terminated for alleged harassment of a co-worker and abusive behaviour towards his supervisor and co-workers. This followed an earlier five-day suspension, in February 2009, for an incident of what the Employer deemed to be sexual harassment. The suspension was not grieved. Mr. Hajrullahu did grieve his termination, and this board was constituted to hear the grievance after the parties were unable to resolve it through their grievance procedure.

Human Resources representative Mr. Illodo and Mr. Walter reviewed the documentation and Mr. Illodo's notes and impressions of what he had learned about the conflict in this workplace. They provisionally concluded that there had been an act of harassment by the Grievor against F. in June. They analyzed the Facebook exchange and interpreted the messages as abusive. Mr. Illodo acknowledged that the remarks were inappropriate going both directions, but said that it was their judgment that the Grievor had started the dispute with his comment about "Arnold arms". He said that overall the tone and content of the Grievor's messages was the worse, that it was "very disrespectful". After the interview, Illodo and Walter caucused to consider what they had been told and came to the conclusion that, particularly in view of the past suspension, there was cause to terminate the Grievor's employment.

The Grievor denied the allegations that he conducted himself in the workplace in an aggressive or abrasive manner. He told us that he treats women with respect.

The Employer's case is built upon the idea that there is one central kind of misconduct exhibited by the Grievor, the abusive harassment of other people in his workplace. Into this one characterization it tries to fit several elements: the Grievor's previous discipline; the buttocks-slapping incident in June 2009, which it characterizes as sexual or physical harassment; the Facebook exchange; the general complaints of the Grievor's co-workers and manager about his performance and manner in the workplace; and his direct dealings with his manager in the period leading up to his dismissal. There are problems, however, with approaching the facts of the case as one more or less uniform course of misconduct. One is that of discerning the truth of the buttocksslapping incident against a backdrop of two employees who possessed some measure of social relationship between them. Another is that the Facebook exchange, however discreditable to both participants, happened in part while both employees were off-duty and that both of them, however improbably, seem to have treated it as not being conduct that related to work. They considered themselves free to indulge in a cycle of nasty, personal remarks in which there was provocation on both sides. A problem related to both the Facebook exchange and the buttocks-slapping incident is the passage of time: what should it be taken to mean that the Complainant did not make the buttocks-slapping incident an issue for management until three months after it occurred; nor the Facebook exchange for a full month afterward" And there is the conceptual problem is that in the dealings between the Grievor and his supervisor, Ms. Jina was not powerless. She was management, and what the Employer characterizes as this element of "abuse" in fact has more the character of insubordination or insolence. Considerations of whether and how management asserted its authority to control insolent or insubordinate behaviour are relevant to such misconduct.

As a panel of experienced labour relations practitioners, we would be the last to deny that office politics exist, or that gender imbalances in the workplace (in either direction) can lend themselves to more, and worse, workplace disputes than normal. In our experience, however, real workplace conspiracies aimed at a wholly innocent employee are much rarer than employees often believe them to be.

All of these areas of misconduct - the buttocks-slapping incident, the Facebook exchange, the Grievor's conduct towards co-workers, and his insolence toward his supervisor - furnish cause for discipline. The next question is whether discharge is appropriate or excessive in the circumstances.

The Grievor's swatting the buttocks of the Complainant was without doubt an "act of workplace foolishness". It was crass and presumptuous. It was offensive as between a man and woman who had not reached a level of close friendship and familiarity that goes beyond that of casual workplace acquaintance. It had, or was capable of having, sexual overtones. But though it may have been technically within the Employer's meaning of "harassment" or "sexual harassment" as an act of unwelcome physical contact between man and woman, in character it falls toward the very low end of the scale of severity. We have already observed that it did not appear to be aimed at inflicting pain, but only shock or surprise. It was a single, sharp but fleeting physical contact, after which the Grievor went away. It was not a fondling or lingering physical contact that would accentuate the sexual character of the act. And, highly important to our analysis, the action was never repeated after the Complainant confronted the Grievor and told him he was out of line. Taken together, these facts make the incident one that to us justifies discipline, even significant discipline, but not discharge.

The Facebook exchange was discreditable to both participants. The language was unrestrained, insulting and fully capable of generating animosity between Complainant and Grievor that could make it difficult for them to work together. The incident warranted discipline. Again, however, in severity it falls short of a level warranting discharge. The exchange was a first and only occurrence of its type between these employees. There appears - most clearly in the testimony of the Complainant - to have operated between them a curious inability to understand that insulting and alienating a co-worker through a social media application is in fact work-related conduct. And again very importantly, the Grievor cut off the conversation and did not repeat his conduct after he was forcefully told by the Complainant to stop.

Turning finally to the conduct that the Employer characterizes as abuse of coworkers and supervisor, we intend to concentrate upon the incident between the Grievor and Ms. Jina. We accept the evidence about the Grievor's manner with his co-workers and find that it is capable of supporting discipline. The concept of progressive discipline, however, includes the idea that at the early stages of an employee's misbehaviour, management will do what is reasonable to take corrective action directly with the employee. There is no indication in the evidence that management confronted the Grievor about his behaviour in any effective way before the meeting of September 24 in Ms. Jina's office. In the absence of any such evidence, the appropriate discipline warranted by this element of the Grievor's conduct would be very mild indeed, if discipline could be supported at all.

We are therefore left with a short-service employee with a recent five-day suspension for conduct broadly similar to some of the conduct in this case. We have an incident of harassment or physical abuse of a co-worker, F., that is mild in severity as cases of harassment go, but that we assess as moderately serious misconduct considering the toxic effect of harassment like this that has even a distantly sexual character. There is proved the misconduct of the Grievor's part in the Facebook exchange. This we characterize as mild to moderately serious misconduct, the Grievor's fault being mitigated somewhat by the shared fault of the Complainant in causing the insults to spiral out of control. We have the Grievor's conduct to his co-workers, which is of too little weight to make a difference in our assessment, mostly because he was not previously called to account by management. And we have the Grievor's insolent and threatening behaviour to Ms. Jina. This we have characterized as moderately serious misconduct, because although it was contemptuous of and resistant to management authority, it was not profane and it was not done in public.

Taken together, this plainly justifies a very significant disciplinary response from the Employer. We are unable, however, to bring ourselves to conclude that discharge was an appropriate response. While taken as a whole the Grievor's course of misconduct was highly blameworthy, it was not so serious that we may conclude with assurance that the employment relationship is irreparable, or that the Grievor is not salvageable as an employee with the benefit of effective management. There turned out to be some mitigating facts and considerations in the case as it was presented to us. These might have been ascertained with a discharge investigation that was less of a rush to judgment than this one was. Overall, then, the case warrants a judgment that discharge was excessive in all the circumstances.

Canada Post Corp. and CUPW, [2012] CLAD No. 85

Canada Post Corp. and CUPW, [2012] CLAD No. 85 (PDF, 759KB)

Question(s) to be Determined:Whether the Facebook comments made off-duty by the grievor had the potential to damage the reputation of the employer, and to harm the supervisors in question.

Findings:It was determined that in addition to the abusive and intimidating language, the postings were mocking to the point of bullying, and consequently the grievor's Facebook postings went far beyond the boundaries of acceptable workplace criticism. Despite some of these comments being posted off-duty, these postings were public and ultimately caused significant harm to the targeted supervisors. Therefore, the grievor's termination was upheld.

Reasoning:Stated that there is ample case law that supports the principle that what employees write in their Facebook postings, blogs, and emails, if publicly disseminated and destructive of workplace relationships, can result in discipline (Naylor Publications; Chatham-Kent; Government of Alberta; Wasaya Airways; Lougheed Imports, and EV Logistics). Consequently, while the grievor might have believed that her postings were private, the public nature and lack of privacy inherent in Facebook communications contributed to an inexcusable degree of recklessness on the part of the grievor for posting remarks about the workplace.

Summary:The employee was dismissed for derogatory, harassing and bullying remarks about supervisors and employer on Facebook. In this case the Employer argued that the postings were grossly insubordinate, had the potential to damage the reputation of the Corporation, and had greatly harmed the supervisors. In response, the Union submitted that the Grievor had no intention of making her Facebook postings public and was simply venting to her friends and co-workers. She had further assumed the messages were private and not visible to her employer. However, while the grievor might have believed that her postings were private, it was found that reasoning did not relieve her of the responsibility for what she wrote. It was ultimately concluded that the employer had just cause for dismissal, as the Grievor's did not appear remorseful and her attitude suggested that she would be a poor candidate for re-establishing the employment relationship.

The Grievor, a postal clerk with 31 years of service, was discharged after management became aware of her postings on her Facebook account. The postings were made over a one-month period and contained a number of derogatory, mocking statements about her supervisors and the Corporation. The postings were sent to more than 50 of the Grievor's Facebook friends including a number of co-workers. The two supervisors disparaged in the postings became extremely distraught after being apprised of and reading the postings, and required significant time off work for emotional distress. The Employer argued that the postings were grossly insubordinate, had the potential to damage the reputation of the Corporation, and had greatly harmed the supervisors. The Employer pointed out that the Grievor was unapologetic, blaming her supervisors for creating an intolerable work environment that justified her postings. Under the circumstances, and despite the Grievor's long service, it was the Employer's position that termination was warranted.

The Union grieved the discharge. It accepted that the postings were regrettable and ought not to have been made. The Union argued, however, that a toxic work environment explained why the Grievor had chosen to vent her frustration in this manner and noted that the Grievor had believed that her Facebook postings were private. Considering the Grievor's long service and how close she was to retirement, the Union submitted that discharge was too harsh a penalty.

The Employer described the Facebook postings as reprehensible, targeting the Grievor's two supervisors and Canada Post in general. In the Employer's view, the postings were threatening and intimidating, they promoted hatred and defiance towards Superintendent D and Supervisor M, and it was clear that they referred to a Canada Post work setting. The postings were available to the public at large in addition to the Grievor's Facebook friends, a number of whom were current or former co-workers. It was noted that the postings were made on 14 separate dates from October 9, 2010 to November 9, 2010 and again after their discovery on November 19th. They could not be construed as momentary lapses or as short-lived emotional outbursts. It was argued that the Grievor was unapologetic.

The postings made included some of the following remarks:

  • "Up and drinking again. I'm playing with my [first name of superintendent D] Voo Doo Doll. DIE BITCH DIE. If I wasn't drunk I would take her outside and run her over." (October 10; 1:21AM - Off-Work)
  • "We surprised the Evil [D] by showing up for work!! She brought in 4 casuals and a injured Letter Carrier and has the two DA's come in 2 hrs early. [Employee S] told us she told them on Friday we weren't going to be showing up!! WRONG AGAIN BITCH you gon b the one missing PERMANENTLY." (October 13; 9:02AM - Off-Work)
  • "Hell called. They want the Devil back. Sorry, she's busy enforcing productivity @ [Midtown]." (October 20; 20;31PM - Off-Work)
  • "I'm texting in Sick, my idiot supervisor is 24." (October 22; 8:27PM - Off-Work)
  • "My Ipod is charging, gonna risk going to work tonight. Hoping the evil hag won't be in until HER OWN shift. Hopefully the HAG has realized how BAD for productivity she is." (October 25; 5:40PM - Off-Work)
  • "Hello from stall #2 my favorite stall #1 is out of order. 43 minutes till coffee time. They should get padded seats now that I'm spending a LOT more time in here!!" (November 2; 4:18AM - At Work)
  • "Hello from stall 1. It's been fixed now lol. No supervisor so we are enjoying a break in the bullying. But the witching hour is 3. Maybe she won't show up again till the swoop through @ 6 like yesterday. Maybe she's afraid since [K] phoned the police on her lolol." November 5; 2:00AM - At Work)

The Employer submitted that the contents of the Facebook postings, the harm they had caused, and the Grievor's lack of remorse, particularly as demonstrated by the defence of provocation, more than justified dismissal. In short, the Grievor had engaged in gross misconduct for over a month that had harmed two managers and the Corporation and for which she was unapologetic. In the Employer's submission, the employment relationship had been irreparably damaged, justifying discharge.

The Union acknowledged that the Grievor's inappropriate Facebook postings justified discipline but argued that discharge was excessive in the circumstances. The Employer's social media policy had not been communicated to employees and the Employer had relied on grounds, such as the Grievor's use of her cell phone at work, that were not part of the letter of discharge and therefore could not be used to justify discipline (Canada Post Corporation and Canadian Union of Postal Workers [Jeworski] (1984) Unreported (Norman)). It was submitted that the Grievor had no intention of making her Facebook postings public and was simply venting to her friends and co-workers. She had assumed her privacy settings had been enabled, a mistake easily made, according to the Union, due to the multiple steps involved in enabling the settings. The Grievor had been genuinely shocked and upset when she had learned that her Facebook postings were publicly available and had been seen by management. In the Union's submission, that was never the Grievor's intention.

I am aware of the Grievor's age and length of service, factors that might in some cases provide sufficient grounds to relieve against discharge. In this case, however, the Grievor's attitude makes her a poor candidate for re-establishing the employment relationship. Throughout her testimony the Grievor remained self-serving and evasive (for example her initial denial of the meaning of "c_nt") and simply refused to accept accountability for her actions. She recanted a number of times during her testimony after being caught in obvious contradictions or upon belatedly realizing the damage her testimony was causing her own case. When asked what lessons she had learned, the Grievor responded she "wouldn't drink and use the computer in future". Her biggest expression of regret was how the current events had "wrecked my career". Despite her long service and the undoubted hardship that her termination has caused, a point reinforced by Dr. Pugh, I find no basis for reinstatement. Accordingly, I conclude that the Grievor had just cause to dismiss the Grievor.

McIntosh v. Metro Aluminum Products Ltd & Zbigniew Augustynowicz, 2011 BCHRT 34

McIntosh v. Metro Aluminum Products Ltd & Zbigniew Augustynowicz, 2011 BCHRT 34 (PDF, 112KB)

Question(s) to be Determined:Whether Mr. Augustynowicz's repeated textual communication with Ms. McIntosh constituted a form of harassment.

Findings: The Tribunal explained that sexual harassment might be blatant as in grabbing, leering and sexual assault, but it might also be subtle and may include innuendos and propositions. Since, in this situation, the sexual innuendo was overt, the only real issue to be determined was whether the messages were unwelcome. Based on credibility and the evidentiary record, the Tribunal found that the messages were indeed unwelcome and therefore that the repeated text messages did constitute sexual harassment.

Reasoning: The Tribunal found Augustynowicz sexually harassed McIntosh largely because of the nature of the evidence that results from text messaging. That is, the complainant did not have any difficulty in demonstrating that there was communication of a sexual nature or that the messages were demeaning, because they were all written down. Further, there was a clear record that McIntosh had asked Augustynowicz to stop sending sexual messages on several occasions, and that these requests were followed by additional sexual messages.

Summary:Company and owner held liable for $30,000 in damages due to owner's "textual harassment" of female employee. In this case Mr. Augustynowicz and Ms. McIntosh had consentingly entered into a sexual relationship. However, when that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh's working environment. Yet Mr. Augustynowicz  continued to subject Ms. McIntosh to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. In conclusion, Ms. McIntosh's departure from Metro was deemed to be due to the sexual harassment.

Lisa McIntosh filed a complaint against Metro Aluminum Products Ltd. ('Metro") and Zbigniew Augustynowicz (collectively the "Respondents"), alleging discrimination in employment based on sex (sexual harassment), contrary to s. 13 of the Human Rights Code. Specifically, she says that she was subjected to ongoing sexual harassment through unwanted text messages from Mr. Augustynowicz between June 27 and September 22, 2008, which ultimately caused her to leave her position.

The Report included several messages where Ms. McIntosh asked Mr. Augustynowicz to stop "treating her that way." For example, an undated message read:

  • "Zbig, I told you that I was not going to talk to you anymore outside of work until you apologize to me for the way you have been treating me, and you have not even bothered to make an attempt and yet you continue to call me a bitch 6 times in fact. I will not be treated that way. So when you are ready to talk and apologize then I will talk to you."

Despite these requests, Ms. McIntosh continued to receive text messages from Mr. Augustynowicz, containing comments such as "still being a bitch"; 'hi sexy"; "you will be single"; "now I know why you are single", "how about a bj"; "still acting like a bitch"; "I said, don't act like a bitch"; "don't be a woman"; "R u ready to start being nice"; "any horny girlfriends'; and "still hate me".

The Respondents deny any discriminatory conduct. They do not deny the specific text messages, but say the text messages did not constitute sexual harassment or any other form of discrimination. They say that Ms. McIntosh consented to, and participated in, all such communications, and that she sent similar text messages to Mr. Augustynowicz. They also say that Mr. Augustynowicz ceased texting Ms. McIntosh when she requested him to do so.

I have concluded that Ms. McIntosh has proven that she was subjected to sexual harassment in her employment at Metro by Mr. Augustynowicz, its owner. As the owner of Metro, and Ms. McIntosh's employer, Mr. Augustynowicz was in a position of authority over her. He was responsible for the terms and conditions of her employment and for ensuring that she was employed in a workplace free of sexual harassment. He failed in this responsibility. He repeatedly referred to Ms. McIntosh in a sexually demeaning manner in his communications to her. He knew, or ought to have known, that his sexual comments and propositions were offensive, inappropriate, and unlawful in an employment context. As consenting adults, Mr. Augustynowicz and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh's working environment.

After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. I accept that Mr. Fitzgerald replaced Ms. McIntosh after she left on sick leave, and that her departure from Metro was due to the sexual harassment.

Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB)

Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB) (PDF, 73KB)

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 that's 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 defense 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 anti-union animus.

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.

Saskatchewan (Ministry of Corrections, Public Safety and Policing) and S.G.E.U. (Hawryluk) (Re)¸106 C.L.A.S. 157)

Saskatchewan (Ministry of Corrections, Public Safety and Policing) and S.G.E.U. (Hawryluk) (Re)¸106 C.L.A.S. 157) (PDF, 102KB)

Question(s) to be Determined:Whether involvement and participation in "secret" Facebook group constituted unacceptable behavior in the context of the situation.

Findings: First of all, the "secret" nature of the Group was quickly lost when the creator of the group chose to invite 36 people, thus making the information widely available. It was further concluded that the Group was offensive and participation in the Group by the grievors was determined to be disrespectful, discriminatory and harassing in nature, thereby breaching the confidence and trust necessary to maintain the expected standard of conduct of a corrections worker.

Reasoning:It was stated that the question is not whether the Facebook Group was the worst of all possible sites, but whether it was offensive enough in the context to justify discipline. Because the grievors worked with an inmate population that was predominantly Aboriginal, the images posted to the Group play on negative and harmful stereotypes. Moreover, participation in the Group was more offensive given the fact that the grievors are corrections workers. Thus, in this case, the content of the group was incompatible with the high standards of conduct applicable to corrections workers.

Summary:A "Secret" invite-only Facebook Group was created by an employee and involved in by other employees. In this group, racist and derogatory pictures and comments posted regarding the payments made to residential school survivors. It was found that the grievors' action violated a number of internal policies including the Government's Anti-Harassment Policy which defines race as prohibited ground, the Standards of Conduct for Corrections Staff which holds that corrections workers are held to a higher standard of conduct than members of the public, the In-Scope Competency Profiles which outlines the knowledge, skills and personal attributes that corrections workers must either bring to the position or learn while in the position, and finally the Information Technology Acceptable Usage Policy which outlines incidental and unacceptable usage of various technologies, including network computers. Despite the use of a "private group? function, the court found that the Internet is a unique universe to which anyone with a computer has access and entry. As a result, there was clear reputational risk to the employer and the employer had the right to respond to the misconduct that caused the risk. Ultimately the termination of the employees in the Group was upheld.

Three corrections workers at the Prince Albert Correctional Centre ("PACC") were dismissed following an investigation by the Government into their involvement and participation in Facebook site ("the Group" or "the Facebook Group"). The Government became aware of the issue on October 22, 2007 and suspended the workers two days later pending an investigation into the matter. The Government concluded that the Group was offensive and participation in the Group by the Grievors was determined to be disrespectful, discriminatory and harassing in nature, thereby breaching the confidence and trust necessary to maintain the expected standard of conduct of a corrections worker. The Government further concluded that the Grievors breached a number of internal policies. The Grievors were dismissed on December 7, 2007 as a result. Grievances were immediately filed challenging the terminations.

The Government concluded that the Grievors' action violated a number of internal policies: 1. Anti-Harassment Policy (Exhibit E1-9)

  • Employees at the PACC are subject to the Government's Anti-Harassment Policy. The Policy indicates that dismissal will be the response where serious cases of harassment have been substantiated. It defines harassment and gives examples of behavior which constitute harassment when based upon one of the prohibited grounds set out in The Saskatchewan Human Rights Code, as amended, or The Occupational Health and Safety Act, 1993, as amended. Race is a prohibited ground and the examples given include "displaying objectionable materials, graffiti or pictures" and "insulting gestures, jokes, disparaging written materials".

2. Standards of Conduct for Corrections Staff (Exhibit E1-8)

  • Disiewich testified that corrections workers are peace officers and, as such, are held to a higher standard of conduct than members of the public, as evidenced by these published standards. They are role models to each other and to offenders. This kind of role modeling is critical if staff are to help re-integrate offenders into society on release.

3. In-Scope Competency Profiles (Exhibit E1-13)

  • The Competency Profiles set out the knowledge, skills and personal attributes that corrections workers must either bring to the position or learn while in the position. New staff are tested on these competencies before being hired.

4. Information Technology Acceptable Usage Policy - IT Policy (Exhibit E1-10)

  • The IT Policy provides examples of core, incidental and unacceptable usage of various technologies, including network computers.
     
  • Disiewich testified that, in his view, accessing Facebook at work would be either incidental or unacceptable use depending on the content of the site. Management understands that staff access email and the internet during breaks. Disiewich said that occasional access was allowed and/or would not be the subject of discipline, again depending upon the type of access involved.

Disiewich testified that it was common knowledge at the PACC that the average payment to residential school survivors was $28,000.00. It was a number he heard from the media and was confident staff heard it as well. There were also media reports about the impact on the community when the settlement money was received. Some of the impact was thought to be negative.

It is against this backdrop that management at the PACC learned of the existence of a Facebook Group called "What would you do with at least $28000 in healing". Disiewich and Schrader learned about it on October 22, 2007.

Disiewich and Schrader could see from the print-out that Hawryluk, Davidson and Aug were involved in some way. Aug posted or added four pictures or images to the Group ? a picture of five cans of Lysol added October 7, 2007, a picture of five bingo dabbers added October 7, 2007, a picture of the Northern Lights Casino in Prince Albert added October 7, 2007 and a picture with the caption "Work Harder!! Millions on welfare depend on you!" added October 12, 2007. Davidson posted or added two pictures or images - a picture of two bottles of "Big Bear Premium Malt Liquor" added October 7, 2007 and a picture of the underside of a bridge on a riverbank added October 7, 2007.

Disiewich and Schrader concluded that the images and pictures were derogatory, offensive and racist. Disiewich testified that the picture of the Lysol cans, beer bottles and National Hotel play on a negative stereotype of First Nations people that they abuse alcohol and other substances. Disiewich testified that the National Hotel is located on River Street in Prince Albert and is a place thought to be frequented by First Nations people. He said the picture of the bridge suggests the same thing, namely that First Nations people abuse alcohol and go to the riverbank to sleep it off.

Disiewich testified that he did not have authority to terminate the Grievors. The decision was made by the Deputy Minister of Corrections and Public Safety. Disiewich made recommendations during the consultative process as the investigation proceeded. He acknowledged that progressive discipline is used in some circumstances involving unacceptable behavior and that a performance improvement program is used in some instances as well. Neither were utilized in this case. Disiewich testified that the conduct of the Grievors warranted more severe discipline; termination was justified. Like Schrader, Disiewich has concerns if the Grievors are returned to the workplace. The issue created a division amongst staff and the division would deepen if they are reinstated.

The Government submits that posting inappropriate material on the internet justifies discipline where the material adversely affects the employer's operations. Simply put, while the employer is not the custodian of the grievor's character or personal conduct, his conduct may be a disciplinary concern to the employer if it adversely impacts on the legitimate business interests of the employer.

The union argues that more than this is required and that there must be evidence of actual harm before an employee's off-duty conduct is actionable. With respect, I do not agree that must always be the case. Obviously, measurable harm caused to an employee will make the case for an employer clearer and stronger. However, where the employment identity is linked to off-duty conduct that is sufficient abhorrent and reprehensible, harm can be presumed, provided of course there is public access to the conduct. That condition applies here. An employee informed the employer of the blog and its contents after discovering its existence. The Internet is a unique universe to which anyone with a computer has access and entry, which obviously includes customers, suppliers, the public, employees and potential employees. Clearly, there was a serious reputational risk to the employer and the employer had the right to respond to the misconduct that caused the risk. ...

The Government anticipates that the Union will argue on behalf of the Grievors that the Facebook Group was part of their private lives and therefore beyond the Government's jurisdiction. The Government acknowledges the basic rule, but says that it does not apply in this case because the actions of the Grievors affected the Government's legitimate business interests in the following ways:

  • The Facebook Group was accessed and modified at the PACC using the Government's computer system.
  • Hawryluk invited numerous coworkers to join the Group.
  • The Group was not in fact private in that numerous people, both employees and non-employees, were invited to join the Group and did so. Other people who were not invited to join the Group viewed the material as well.
  • Many members of the Group identified themselves as corrections workers and/or would be known in the community as corrections workers.
  • The content of the Group had the potential to bring disrepute to the Government, thereby negatively affecting its interests.

Many of the employees who were investigated appeared to believe that the electronic transmission of offensive material to persons who wished to receive it is not as serious as the physical display of such material in the workplace, undoubtedly because of the view that sending offensive items electronically is private. The belief that sending offensive items to specific individuals in a workplace by e-mail is private is illusory. Depending on the physical configuration of the workplace, there is the risk that persons other than the intended recipient might view offensive material on a screen. ... In addition, the sender of inappropriate material has no control over what the recipient will do with the material. ... A further consideration, as this case illustrates all too well, is that the employer's discovery of inappropriate e-mail activity can result in many individuals viewing the offensive material.

The Union questions whether the Grievors' conduct warrants any discipline. The Grievors cannot be punished for accessing Facebook in that the forensic audit disclosed that 92 employees of the PACC accessed Facebook at work. Being a member of the Facebook Group cannot be a problem in that the Government chose not to discipline a number of employees who became members.

Hawryluk invited 16 corrections employees to the Group. The evidence before us is that Davidson and Aug were the only employees to become members and post images or text to the Group. The Government saw this as an important distinction and chose not to discipline the other employees who visited the site, irrespective of whether they became members. That reasoning makes sense in the circumstances. Actively posting images or text to the site is more egregious than merely opening the site or even agreeing to become a member.

We conclude that the Grievors' conduct was injurious to the interests of the Government and that it was incompatible with the faithful discharge of their duties. The Government was justified in taking disciplinary action. The next question to address is whether the decision to terminate was an appropriate response in all the circumstances, that is, whether the harm done warranted the penalty imposed. In our view, after carefully considering all of the evidence, we find that termination was justified. The site was offensive, ridiculing a significant proportion of employees and inmates at the PACC. The Government was justified in concluding that the Grievors' conduct irreparably breached the confidence and trust necessary to maintain their employment.