THE EMPLOYERS' EDGE
Boneheaded Facebook Post Strikes Again! Arbitrator Refuses to Reinstate Unjustly Dismissed Union Member
Our readers probably already know that when a unionized employee is unjustly discharged from their employment, the presumptive remedy from an arbitrator is reinstatement to employment. But there are always exceptions to the rule, and in a recent, unreported decision coming from Alberta, an Arbitration Panel determined that a wrongfully terminated union employee was NOT entitled to reinstatement.
The Grievor was RM, an asset management support clerk in the Capital and Asset Management Department of the City of Calgary with six years of service and a clean disciplinary record. He was also an avid snooker fan, player, and manager of a regional snooker organization. In response to information from a co-worker that he was spending an inordinate amount of time online pursuing his passion for snooker, management from the City of Calgary undertook an investigation. They found that the Grievor in fact was using the City’s computer system for personal reasons while at work, including internet use and use of the City’s servers for storing his personal documents. Further, he was found to be in breach of the City’s policies regarding use of technology resources, conflict of interest, and the City’s sick leave policy. The City terminated the Grievor, and the Union, CUPE Local 38, challenged the termination on his behalf.
The Arbitration Panel found that some measure of discipline was warranted given the Grievor’s misconduct. However, given that the Grievor had a clean discipline record, and the City did not engage any form of progressive discipline, opting to jump straight to termination, the Panel ruled that the City had fallen short of establishing that termination was warranted in the circumstances. Notwithstanding this finding, and despite the fact that the presumptive remedy would typically be reinstatement, the Panel refused to order reinstatement in this situation.
Subsequent to his termination, the Grievor authored two lengthy Facebook messages, the first of which was delivered to six co-workers, and the second which was delivered to about 40 of his Facebook contacts. His messages accused his manager, by name, of falsifying documents to set him up for termination. There was no evidence to support that claim. Further, the Grievor referred to this manager, by name, as “a special kind of evil”, a “truly ugly person”, as a “f**king loose-lipped corrupt witch”, and concluded that he hoped her home was under water. Of course this message was written during the devastating Calgary floods of 2013, and the Manager’s own family had been displaced from their home at the time.
While the Grievor offered some excuses for his actions, ultimately the Panel decided that the Facebook messages were extremely serious forms of misconduct, and that the Grievor and Union could not realistically expect that he would return to work for the City. The Panel reasoned that “Through his own actions, the Grievor has completely undermined the trust necessary to restore an employer/employee relationship. Through his own actions the Grievor has destroyed the viability of any employment relationship with the City and as a result I decline to reinstate the Grievor.”
Ultimately, the Panel stated that the Grievor deserved a lengthy suspension, and remitted the issue of remedy in the form of damages back to the parties to resolve on their own.
This case should provide a strong warning for both employers and employees. While it is important for an employer to enforce their workplace policies, they must be mindful to not jump the gun on discipline, and try to exhaust the appropriate levels of progressive discipline before concluding to terminate a Union member from employment. It is a very rare and special case where an arbitrator will not reinstate an unjustly dismissed unionized employee. On the other hand, employees must realize that when their misconduct, either prior to or post-termination, is so repugnant that it irreparably damages the employment relationship, even the great shield of Union membership will not preserve their employment.
The lawyers at CCPartners have extensive experience in dealing with all manners of discipline in the Unionized workplace context, and can assist your company in navigating a route through progressive discipline, or determining whether just cause exists to terminate. Click here for a list of team members who can assist with your labour relations questions.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.