A recent labour arbitration decision – one of Canada’s first Twitter firing cases – expands the reach of employee off-duty conduct by extending a branch of a well-known legal test for justifying termination, a move that may raise difficult questions in future cases, says Toronto employment lawyer Doug MacLeod. Toronto Sun
In September 2013, two Toronto firefighters were discharged after sexist tweets – said to be quoting television shows – were discovered on their Twitter accounts. Through their union, the young men filed grievances against their employer, the City of Toronto, which was represented by lawyer Heather Crisp.
In the case of Lawaun Edwards, the arbitrator substituted a three-day suspension for his discharge, while Matt Bowman’s termination was upheld.
A well-known legal tool referred to as the “Millhaven test” is discussed in both cases, but in Bowman’s case, arbitrator Elaine Newman suggests the fourth element of the test should be updated to include off-duty human rights violations as possible grounds for termination.
The portion of the test asks if the individual has committed a serious breach of the Criminal Code, which would damage the reputation of the company and its employees, writes Newman. She notes when the test was devised in the late ’60s, such a breach would have reasonably harmed the reputation of a company and its employees, and the same is true today.
“But it is obvious that cultural awareness and sensitivity has grown over that time, along with the diversification of our communities and our workplaces,” she writes.
“I am confident that in 2014, a serious breach of the Employer’s Human Rights and Anti-Harassment and Discrimination policy, or a serious breach of the Human Rights Code, would, to that same reasonable and fair minded member of the public, seem just as damaging to the employer’s general reputation as would a serious violation of the Criminal Code. In Canada in 2014, that reasonable person, in my view, would consider human rights violations to be very serious misconduct, injurious to the employer’s reputation.”
Newman suggests the fourth branch of the Millhaven test be revised to state: “Has the grievor been guilty of a serious breach of the Criminal Code or of a Human Rights Policy or Code, thus rendering his or her conduct injurious to the reputation of the company and its employees?”
It’s a notable update, says MacLeod, and it may be problematic.
“What’s a serious breach of the Human Rights Code as opposed to a non-serious breach? Some sexual harassment cases result in damages of less than $1,000 and some cases result in damages of $20,000 or more,” MacLeod tells AdvocateDaily.com. “When you expand that ground so significantly, where do you draw the line?”
In the cases of Bowman and Edwards, says MacLeod, no co-workers complained about the tweets, which raises the question: When does a private tweet constitute a violation of the Human Rights Code?
“Does the employer need to prove that there was a serious breach of the code and the public was made aware of this breach?” asks MacLeod.
Both Bowman and Edwards were fired after inappropriate use of their Twitter accounts was publicized in an August 2013 National Post article. The Post suggested the tweets hinted at a “culture among some firefighters that may not be very welcoming towards women,” despite Toronto Fire Services’ claims it wants to recruit more females and members of visible minorities.
But the facts of each case are different.
The arbitrator handling Bowman’s case, The City of Toronto v. The Toronto Professional Fire Fighters’ Association, Local 3888, found his series of sexist, misogynist, racist and offensive remarks on Twitter justified termination.
“Some were offensive in their discussion of people with disabilities. Others were offensive in their references to homeless people. One invaded the privacy of others. Many were jokes, juvenile in nature, with sexual themes,” writes Newman, noting Bowman testified he did not understand that his tweets could be accessed by members of the public.
The National Post article discussed three of Bowman’s tweets, but the arbitration decision discussed more, including one that said: “if you were deaf I would rape you and then break your fingers so you can’t tell anyone …” Another said: “Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.”
Bowman was terminated because he violated City of Toronto and Toronto Fire Services policies and guidelines and harmed the reputation of the service, the decision reads.
In dismissing the grievance, Newman says while she’s “sure the grievor is sorry that all of these things happened,” and “sorry that he ever opened a Twitter account,” she is not “convinced that he genuinely accepts responsibility for the offense and for the damage he has caused.”
In Edwards’ case, Toronto Professional Firefighters Association, Local 3888 v Grievance of Lawaun Edwards, F13-142-07, 2014 CanLII 62879 (ON LA), arbitrator Gail Misra discusses the Post article, which quoted his Twitter account as suggesting giving a woman a “swat in the back of the head” to “reset the brain.”
The employer also believed that a tweet where Edwards wrote “go get it sweetie” was inappropriate, “as was his use of derogatory ethnic and racial terminology in another tweet that had come to the employer’s attention through an outside source,” says the decision.
Like Bowman, Edwards testified he believed his tweets were private to the person he was conversing with, and that no one else would be able to access them.
“I have taken into consideration that the tweet was not directed at anyone in the workplace, and appears to have been an isolated instance of Edwards making an inappropriate and disrespectful comment about how a female may be treated,” Misra writes in the decision, referring to the “swat” tweet.
“While I have found that the ‘swat in the back of the head’ tweet was inappropriate, I find that termination is too harsh a penalty for that comment,” the decision continues.
Referring to Bowman’s case, MacLeod says while there have been several Twitter firings in the United States, this is one of the first cases in Canada where an arbitrator has upheld the discharge of a unionized employee over comments made on Twitter.
“This case is yet another cautionary tale for employees who do not consider the implications of expressing their personal opinions on social media; it can cost you your job,” says the employment lawyer.
“Whether they thought the postings were private or not, these are social media platforms and they’re going to have to live with the consequences of their posts.”
Employees must be careful when posting on these websites, says MacLeod – especially when working for the public sector.
“The interest the employer puts forward is, ‘We need to have the confidence and trust of the public that we’re serving, and anything that’s done to bring that confidence and trust into question is a problem.’”
MacLeod’s advice to employees is simple: be careful what you tweet.
“If there can be a connection drawn between you and your employer and your tweet reflects badly on your employer, you’re going to be subject to discipline,” he says.