Social Media use at Work – Know the Risks

Teamsters Canada Rail Conference v Canadian Pacific Railway Company, 2019 CanLII 131167 (CA LA)

In this case, S. K. was fired because of her off-duty social media posts. The Canadian Pacific Railway (CP) asserted that the posts’ substance was not appropriate and that the behaviour was unbecoming of an employee.

In these social media posts, the plaintiff S. K. made derogatory remarks about CP, the corporation in which she worked. She referred to CP’s ethics guidelines as a “comedy,” for instance. This disparaging remark insinuates that the company’s policies are lacklustre.

The arbitrator concluded that CP’s investigation lacked impartiality and fairness. The investigating officer displayed prejudice throughout the investigative process by excluding pertinent information and mistreating S. K. when she was being questioned. Moreover, there were concerns over the legitimacy of the investigation because it was based on an apparently baseless complaint.

The arbitrator came to the conclusion that the evidence did not support dismissal, even in the event that the investigation had been fair. Despite being unprofessional, S. K.’s posts did not justify her termination. Therefore, her conduct should have resulted in less disciplinary action taken against her.

Not only this, but S. K.’s behaviour after she got fired made her face even more consequences even after the fact and made it harder for her to gain a favourable remedy. Her posts after dismissal, which included insulting comments about CP and specific employees, demonstrated a dysfunctional relation in the employer-employee dynamic. These actions showed a flagrant lack of respect and compatibility for her job and did not warrant the reinstatement of her job. This case shows that even behaviour that one displays after they have already been terminated from their job can still have consequences.

As a result, the arbitrator held that S. K.’s reinstatement of her position was not a feasible option. Instead, S. K.was awarded appropriate monetary compensation for the unjust termination. This is because even though her behaviour warranted some type of disciplinary action, it did not justify the severe penalty of termination that was initially imposed by CP.

Toronto (CIty) v. Toronto Professional Fire Fighters’ Association, Local 3888, 2014 CanLII 76886 (ON LA)

The main legal issue matter under dispute in this arbitration case was the firefighter’s termination due to his inappropriate and unbecoming usage of social media. Following the discovery of his inflammatory tweets, the City of Toronto fired the grievor, M. B. for Racist, misogynistic, sexist, and other offensive statements were included in these tweets. Several workplace policies, including those related to anti-harassment and human rights, were violated by the grievor’s discriminatory remarks.

According to the decision, the grievor’s tweets were found after a National Post report that seemed to have exposed a potentially hostile and poisonous culture towards women in the Toronto Fire Services. The article’s pointed to tweets with inappropriate content that was deemed to be damaging to the Toronto Fire Services’ reputation. While acknowledging that the tweets were sent, the complainant claimed that they were meant to be private messages between friends and followers. In these cases, there has been a general trend in that the privacy settings of one’s posts can make a difference.

Here, the main legal issue for the arbitrator was whether the grievor’s online posts were grounds for a justified termination. The Association said that the grievor’s prompt apologies and subsequent sensitivity training proved that the punishment was unduly punitive. Nevertheless, the arbitrator that the grievor’s acts had done considerable harm to the employer’s reputation.

Not only this, but it affected the employee’s ability to carry out his duties, which include upholding the public’s confidence and respect toward the firefighting profession.

In the end, the arbitrator determined that the grievor’s actions were reasonable grounds for termination. The ruling rejected the claim and shows how crucial it is to follow workplace regulations, particularly in positions that demand a high level of public trust.

Amalgamated Transit Union – Local 1587 (Juteram et al) v. The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB)

This arbitration case deals with the unfair termination of five GO Transit bus drivers. According to the Union, Metrolinx violated the collective bargaining agreement by firing these workers without just cause. Using their personal cellphones after work, the bus drivers—all with seven to ten years of service and no past disciplinary records—were participating in private WhatsApp talks. In these discussions, there were remarks made about the bosses and other coworkers that were seen to be insulting and disparaging.

After somebody forwarded these texts to the superiors at Metrolinx, Metrolinx commenced an investigation that resulted in the drivers’ termination. The inquiry drew criticism for a number of reasons. First off, by failing to provide a fair and unbiased inquiry, the investigative process violated the company’s own Workplace Harassment and Discrimination (WHD) Prevention Policy. Although the affected employee refused to cooperate or make a complaint, Metrolinx continued with the investigation in violation of the policy’s requirement that complaints be made by the individuals who were harmed.

Furthermore, it was determined that the investigator’s techniques were biased and unreasonably invasive, especially when it came to obtaining lengthy private messages from the workers’ smartphones under the fear of reprisal or retaliation for their disobedience.

Even though the comments made in the WhatsApp chat were hurtful and not nice to read, the arbitrator ultimately stated that the off-duty comments and text messages were supposed to remain private and had no detrimental effects on the workplace. In a general sense, it would not be fair to punish people based on the conversations that they have behind closed doors, especially if it does not directly impact the workplace or create any direct harm.

The fact that there was a two-year delay in investigating this matter further weakened MetroLinx’s case. In the end, arbitrator ordered the employees’ reinstatement, full repayment for any lost pay and benefits, and the removal of any disciplinary records in relation to this incident.