Ontario arbitrator upholds discharge for Facebook postings

On May 15th, Arbitrator Trachuk upheld the discharge of a short service crane operator for posting disparaging and sexually explicit comments about a female coworker on his Facebook. The decision is fact specific and not surprising. Arbitrator Trachuk, however, does make the following statement about admissions and apologies (in the context of a social media offence) that is sensible and of note:

The union asserts that the grievor’s apology is another mitigating factor. The grievor did apologize to the company in his first meeting and offered to apologize to X. An admission and an apology are not exactly the same thing. An admission after a person has already been caught is not worth much. The grievor’s offense was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained. However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self-serving. That is why a grievor who wants to persuade an arbitrator about his sincerity will testify. This grievor did not. The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

United Steel Workers of America, Local 9548 and Tenaris Algoma Tubes Inc. (15 May 2014, Trachuk).

The other side of the balance: employer interests, work systems and R v Cole

Here’s a link to a essay that describes the impact of the Supreme Court of Canada’s in R v Cole – the work system privacy case. I appeared with my colleague Joseph Cohen-Lyons on behalf of the Canadian Association of Counsel to Employers, and the paper represents the intellectual end point of a great experience. Whether you agree with the position or not, I hope it sparks some ideas!

Managing illegitimate employee expression

I spoke at our client conference today on “managing illegitimate employee expression.” The presentation below starts with the public versus private conduct material I’ve presented on frequently of late, then moves to a topic called “when their expression becomes yours” (on how to structure corporate social media programs) and a topic called “expression by outsiders” (on managing illegal communications targeted at employees and attacking the employer’s own repuation). I hope these are helpful.

Key issues in workplace privacy presentation

I spent most of the day today at the Canadian Institute’s Meeting Your Privacy Obligations conference. It was a very good show, and I managed to catch great presentations by Frank Work, Robin Gould-Soil (of TD Financial Group) and David Fraser. I did a “hot issues” style presentation on workplace privacy. Two thirds of the content is refined from the slides I posted yesterday, but there’s an additional part on background checks. Notes are in the slides over at Slideshare.

Case Report – Wrongful dismissal plaintiff can discover his former subordinate about her harassment complaint

On September 3rd, Strathy J. held that it was not improper for a wrongful dismissal plaintiff to conduct oral discovery of a former subordinate whose harassment complaint led to his termination.

The plaintiff sought to examine the complainant, and the employer moved for an order directing the examintion of the human resoruces manager who had conducted the harassment investigation instead.

Strathy J., hearing an appeal of a master’s order, dismissed the employer’s argument that the choice was improper because the complainant did not participate in the decision to terminate and had no knowledge of the corporate imperatives underlying the decision. Strathy J. held that the request was “rational” and made for a proper purpose and held that the plaintiff would be prejudiced by being deprived of an opportunity to examine the person whose evidence “goes to the heart of the case.” Strathy J. also noted that the plaintiff’s counsel had undertaken that the complainant need not prepare herself for examination on issues of which she had no personal knowledge, said he would be happy to receive undertakings on such issues and suggested that he would be willing to examine the complainant without the plaintiff present.

Ciardullo v. Premetalco Inc., 2009 CanLII 45445 (ON S.C.).