Termination for Facebook post upheld by arbitrator – Despite absence of social media policy

The recent decision of United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA) provides an example of how a unionized employee’s off-duty social media behavior can justify dismissal, despite the absence of any reference to social media in the company’s harassment policies.

The grievor was a crane operator who took issue with a female co-worker’s job performance as a stocker. Following his shift, the grievor posted comments on his Facebook page about the stocker referencing one of her distinctive physical features. A third co-worker commented on the post and suggested performing a sexual act with that physical feature. The grievor responded and suggested subjecting the stocker to further violent and humiliating sex acts. The stocker became aware of these comments and notified the company. The company relied on its Code of Conduct and Harassment and Violence policies in terminating the grievor. The union grieved his termination.

In upholding the grievor’s termination, Arbitrator Trachuck considered the vicious and humiliating nature of the grievor’s Facebook comments referencing the stocker. Arbitrator Trachuck also noted that the grievor must have known the stocker would see or hear about the posts since the grievor had co-workers as “friends” on Facebook, the grievor had no privacy settings on his Facebook account, and the grievor left the comments visible on his Facebook page for 10 hours. Arbitrator Trachuck noted that the company’s harassment policies did not address Facebook or other social media but did not consider this to be a factor mitigating the grievor’s actions.

This case illustrates how workplace harassment can occur even in an employee’s off-duty conduct through social media. While workplace policies should be updated to reflect the prevalence of social media harassment, the absence of such references does not prohibit an employer from imposing discipline for social media harassment where appropriate – particularly in the most egregious cases where harassment policies clearly apply.