Another Brick In The Wall: Arbitrator Upholds Discharge For Offensive Facebook Postings

Author:Mr Kevin Feth, QC and Terri Susan Zurbrigg
Profession:Field LLP

A prominent labour arbitrator has upheld the discharge of a long-term employee for posting offensive material about her supervisors on Facebook, and in doing so, has clarified some of the legal principles applicable to misconduct involving social media.

In Canada Post Corporation v. Canadian Union of Postal Workers1, a postal worker with 31 years of service made comments on Facebook over the course of four weeks that maligned and seemed to threaten two of her supervisors. While the postal worker thought that her posts were private, and restricted to her 52 Facebook Friends (including some co-workers), she had failed to engage the privacy settings, leaving her Facebook Wall publicly accessible. The Facebook posts were reported to management by another employee. When the supervisors accessed the site to investigate, they were both so disturbed by the contents that they reported the postings to the police and required time away from work.

The posts referred to one of the supervisors as "evil," a "bitch," a "hag," "C_unt," and "the devil". The other supervisor was characterized as a "yes man" and an "idiot". The posts also contained threatening language such as "DIE BITCH DIE," and "WRONG AGAIN BITCH you gonna be the one missing PERMANENTLY".

The posts also provided numerous examples of insubordination towards Canada Post and its managers:

"3 nights of freedom from Postal Hell. Lovin' my indefinite suspension Hell called. They want the Devil back. Sorry, she's busy enforcing productivity @ [the postal depot] I'm texting in Sick. My idiot supervisor is 24. Tonight is my first night back, since my suspension, but I'm just not feeling well enough to meet expectations, hell I'm on my fourth cooler, so I'm staying home to rest/ pass out. Lolol, I've gone Postal." While the Grievor posted most of the Facebook material while she was off-duty, some of the posts were made using her cell phone while at work.

Canada Post regarded the posts as reprehensible, grossly insubordinate, threatening, and openly defiant and contemptuous of management. Consequently, the postal worker was discharged.

In grieving the termination, the Union contended that the Facebook posts were made primarily in response to two incidents that occurred at the postal depot in the Fall of 2009: a staff meeting that was called in order to address performance concerns, and a confrontation that occurred on the work floor between the Grievor's Superintendent and another co-worker. The...

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