Bill 168 has changed the legal landscape of Ontario workplaces, particularly with respect to how employers must view incidents of violence and harassment in the workplace. In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc.,(May 2014) (PDF), Arbitrator Laura Trachuk upheld the dismissal of an employee for posting vicious, humiliating and threatening comments about a co-worker on Facebook. Arbitrator Trachuk rejected all of the union’s arguments for mitigation, including that there was an apology and the comments were made in the heat of the moment, stating that the conduct in question was not “off-duty” conduct. The Arbitrator further stated that the purpose of Facebook is to share ones views with others and this created a “poisoned work environment.”
The Arbitrator concluded:
…An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her… [T]he grievor sexually harassed X and created a poisoned work environment… The company is responsible under the Human Rights Code, OHSA and the collective agreement for maintaining a workplace free of harassment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a different shift from X. This is not an appropriate case for progressive discipline. I do not find that the company violated the collective agreement by terminating the grievor’s employment. The grievance is denied.
One lesson from this decision is that posting information and comments on social media for viewing by Facebook “friends” or the public, including employers, means that management may exercise their right to terminate as they did in the Tenaris Algoma Tubes Inc. case