- “An Employee Does Not Necessarily Get One Free Sexual Harassment Before He Loses His Job”, Says Arbitrator in Upholding Dismissal for Facebook Harassment, Threats
- November 21, 2014 | Author: Adrian Miedema
- Law Firm: Dentons Canada LLP - Toronto Office
An arbitrator has upheld the dismissal of a unionized employee for one incident of sexual harassment and threats on Facebook.
After an incident at work in which the grievor was displeased with “X”, a female co-worker, the grievor went home and complained about X on Facebook. Although he did not identify X by name, he referred to what the arbitrator called a “distinctive personal characteristic” of X. Another co-worker posted a comment on Facebook that suggested performing a physically aggressive act with X’s physical characteristic. The grievor agreed with the comment and added a further suggestion on Facebook that a violent and humiliating sex act be performed on X. He then mentioned a cruel nickname associated with X’s personal characteristic. From start to finish, the grievor’s Facebook session lasted about 2 hours.
Within a few hours, X found out about the Facebook postings. She complained to the employer, and explained that she had been teased about the personal characteristic when she was a child and was very sensitive about it. The company then fired the grievor, finding that his comment referring to X was a reference to a violent and aggressive sexual act that was perceived to be a threat of both sexual and physical assault.
Arbitrator Laura Trachuk upheld the dismissal. She stated that it would be reasonable for a woman reading the Facebook posts to feel threatened. The grievor had suggested, in those posts, that X be sexually assaulted. He must have anticipated that X would see the posts because his Facebook “friends” included co-workers. According to the arbitrator, “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.” The references to X’s personal characteristics could only have been made to hurt her.
In closing, the arbitrator stated that, “Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job.” The grievor was not a long-term employee and the company could have little confidence that he could be trusted never to harass someone else.
United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA)