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.