Stewart McKelvey

5 Doing Business in AtlAntic cAnADA SUMMER 2014 derogatory but the grievor claimed she had to be "crazy" and "delusional" at the hearing. The posting referenced the Company by name and identified the grievor as an employee of the Company. The com- ments included: • Safety attitude of the company was openly challenged. • That the half retarded baymen management believe it cheaper to replace people than machines. • Named and threatened two managers that she would not stop until they were "on welfare or are behind bars". • To the two managers she quipped "...let's see how insignificant you feel when you Got (sic) a rope around ur (sic) neck and ur (sic) balls soaking in gasoline…" • Of the two managers she quipped "Fucking stupid half retarded bayman (sic) that's what you get when you put little boys in big boy jobs." • "Don't normally like revenge but by the Jesus I'm going to fucking REAM you. Fuckin guzzlers Of le sperme du francais. I hope you choke on les poils pubiens! Half breeds." (spelling errors in original) Here's what Arbitrator Oakley said about the posting: • The content of the posting is disparaging of the Company and its reputation. • The posting contains offensive and derogatory comments about management and the two Managers named in the posting… • The posting refers to "half retarded baymen management" and "fucking stupid retarded half French bayman". • The posting contains threats of extreme violence and ongoing threats of violence or harassment. These comments are directed specifically to the Managers … and states "I won't stop until you draw a welfare check or are behind bars"… The posting contains an extremely offensive threat in the sentence, "Lets see how insignificant you feel when you Got a rope around ur neck and ur balls soaking in gasoline"… The posting also contains the threat "when i see you now, you know u better run". At the arbitration hearing, the grievor agreed that the post was unacceptable and apologized for what she had written. She testified that she did not recall posting the comments, though she did not deny that she had personally made them. She testified that she had been on anti-depressant medication in the months leading up to the incident and had not been sleeping well. At the time of the posting, she said, she was weaning herself off the medication. No medical evidence was called at the hearing and although her drug summary from one pharmacy was introduced into evidence it was incomplete. Arbitrator Oakley found that the grievor had no reasonable basis to be frustrated with the investiga- tion's progress and agreed with the Company that the posting was inappropriate, offensive and threat- ened physical violence saying: • The posting reasonably caused [the Managers] to be concerned about their safety and the safety of their families. • The posting uses threatening and offensive language. It is also written in an organized and structured manner… The posting contains severe threats of physical harm, makes offensive comments about named individuals and makes derogatory comments about the Employer. WERE THERE Any miTigATing FACTORs? Arbitrator Oakley recognized that the grievor was a 13-year employee and had removed the posting from her Facebook account as soon as a fellow employee had brought it up as an issue within management. Further, she had a relatively clean disciplinary record with only one previous suspension for inappropriate behavior. Notwithstanding this, Arbitrator Oakley said: "…There are insufficient mitigating factors to support substitution of another penalty in place of discharge, having regard to the language used in the Facebook posting, the Grievor's response when con- fronted with the posting, the effect of the posting on the Managers named in the posting, the disparaging comments about the Company in the posting…and the arbitral authorities". WHAT WAs THE ARbiTRATOR's COnClUsiOn? The arbitrator noted that prior arbitration awards have found Facebook conversations are circulated widely and a case in which a Facebook post is found to be private in nature will almost certainly be the excep- tion rather than the rule in the current legal climate. He also did not accept the grievor's evidence that she was "crazy and delusional" when the post was made. Rather, her posting was coherent and structured, and during the time that it was made, the grievor con- tinued to attend at work. The Company had just cause to terminate. WHAT dOEs iT mEAn FOR yOUR bUsinEss? This case demonstrates that an employer can react to remove an employee who uses social media, if only once,

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