Stewart McKelvey

4 SUMMER 2014 Doing Business in AtlAntic cAnADA A n arbitration decision released December 11, 2013 in the matter of a grievance alleging dismissal without just cause between the then Communication, Energy and Paperworkers Union Local 64 (now Unifor Local 64) and Corner Brook Pulp and Paper Company Limited (NL) provides signifi cant insight into the risks of using social media as a place to vent an employee's opinion of the employer or its management and supervision. The following is a brief review of the decision. WHAT HAppEnEd? Two employees, including the grievor who was 13-year veteran employee of Corner Brook Pulp and Paper (the Company), were directed to clean an area including the half story high operat- ing equipment in the area with a pressure washer. Both employees were instructed to direct the spray from the pressure washer away from the electrical motor driving the large pumps which supported the newsprint making process. Work progressed without incident for a period and the two employ- ees agreed to switch up to relieve each other from operating the pressure washer. When the grievor took her turn she inadvertently al- lowed water to come in contact with the elec- tric motor causing the motor to trip out and shut down. This result was a normal safety feature of the motor equipped with a Ground Fault Interruption (GFI) device. The trip cre- ated a loud bang and the grievor was startled. After speaking with the electrician who was called to assess whether there was any dam- age to the equipment the grievor believed she had experienced a "near miss" in which she believed she came close to being electrocuted and at the hearing claimed to have seen "a blue fl ash". The lack of dam- age and the GFI safety trip activa- tion makes it highly unlikely that an electrical arc escaped the protective housing when the motor tripped out. Nevertheless, there was no dispute that this was a serious incident. The Company began a safety investiga- tion into the incident to determine what process or procedures should be put in place to avoid similar in- cidents. This process was necessary and required a careful analysis as the method and procedure used to do this normal clean up function had been successfully used for decades without incident. The investigation however was moving too slowly for the employee. When, after several days, manage- ment had still not met with her, she expressed her frustration in a lengthy Facebook post. The posting caught the attention of several employees within the operation and within an hour of the posting being made, a copy of the posting was printed and given to a manager named in the posting. The next day, the employer confronted the employee about her post- ing. She accepted that she authored the posting and advised that once another employee brought it to her attention she used his hand held device to remove the posting claiming she was not thinking when she posted it. The grievor showed little remorse asking who was the "rat" that "ratted her out". The em- ployee was terminated for cause. The employee's union grieved her discharge. HOW bAd WERE THE FACEbOOK COmmEnTs? The com- ments posted by the grievor were described by all witnesses, including the grievor, as offensive and *The following article contains profanities and sensitive information. Reader discretion is advised." By Harold Smith, QC singlE inCidEnT OF OFFEnsiVE And THREATEning FACEbOOK pOsT is JUsT CAUsE*

• Cover