Boneheaded Facebook post strikes again

Arbitrator refuses to reinstate unjustly dismissed union member
By Michael MacLellan
|employmentlawtoday.com|Last Updated: 07/06/2015

When a unionized employee is unjustly discharged from her 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 Randall Morrison, 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 Morrison 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 Morrison, and the union, CUPE Local 38, challenged the termination on his behalf.

The arbitration panel found that some measure of discipline was warranted given Morrison's misconduct. However, given that Morrison 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,Morrison 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, Morrison 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 Morrison offered some excuses for his actions, ultimately the panel decided that the Facebook messages were extremely serious forms of misconduct, and that Morrison and the union could not realistically expect that he would return to work for the city. The panel reasoned that "through his own actions, (Morrison) has completely undermined the trust necessary to restore an employer/employee relationship. Through his own actions (Morrison) has destroyed the viability of any employment relationship with the city and as a result I decline to reinstate (Morrison).”

Ultimately, the panel stated that Morrison 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.

Michael MacLellan is an associate practicing labour and employment law with CCPartners in Brampton, ON. He can be reached at (905) 874-9343 ext. 251 or mmaclellan@ccpartners.ca.

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