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Digest of the Week - "Facebook® status: unemployed"

Bell Technical Solutions and CEP (Facebook Postings), Re

2012 CarswellOnt 11432

Ontario Arbitration Board

Judgment: August 31, 2012


Labour and employment law | Labour law | Discipline and termination | Grounds | Conduct incompatible with position | Off-duty conduct | Miscellaneous

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A, W and S were employed by telecommunications company BTS — B was employed as manager and had occasional interaction with A, S and W — B was W's uncle — W complained on Facebook as to his work hours and scheduling — B's daughters saw W's postings and deemed them inappropriate — W continued to complain about his work assignments and BTS itself and he and A and S made comments about B — B gave copies of comments to Human Resources who referred matter to shop steward — S, A and W were warned but continued making comments including calling B "gorilla" and posting pictures of gorillas with negative comments — B again referred postings to Human Resources — W refused to admit wrongdoing or apologize and was terminated — A was also discharged — S stated he was unaware of meaning of gorilla but had deleted postings when he found there was problem and apologized and received five day suspension — Employees filed grievances against discipline and alleged harassment by B — Grievances by S and W were dismissed, grievance by A was allowed and he was reinstated — S had more than seven years' service — S's Facebook postings were much less frequent than W and A's and never contained derogatory comments about BTS — S apologized early on and in sincere fashion — Five day suspension was warranted given nature of remarks and S's failure to stop making postings after first warning — W had little service time and as he was temporary part-time employee BTS was entitled to schedule him for every weekend and irregular hours but he continued to complain about it on Facebook — W's postings were very disparaging of BTS and B despite his acknowledgement that B worked at different centre, was not his manager and that he had never seen B lose his temper or get angry at work — Apology letters were of little weight as they came late, he continued posting after getting warnings, failed to acknowledge wrongdoing in two separate meetings and was both dishonest and defiant during meetings — BTS had just cause to terminate W's employment — While A's conduct was similar to W's it was less serious as he refrained from making negative remarks about BTS, issue of provocation arose for him as he had worked for B in past and he had significantly more service time — A's postings were insolent and very insulting to B and warranted discipline — A's apology letters deserved little weight — A had been provoked as over his nine years at BTS he had plenty of contact with B and his inappropriate conduct including bad temper and use of inappropriate phrases — A had different employment status than W as he had been regular part-time employee not temporary — One-year suspension was appropriate discipline for A.

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