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Queen's University
 

Canada Post Corp. and CUPW

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.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000