Legal update: Employer’s lenience leads an arbitrator to overturn a dismissal despite the seriousness of the offence
Par Maude Grenier, Norton Rose Fulbright
By Maude Grenier
Norton Rose Fulbright
An employee’s dismissal was converted into a suspension without pay by Arbitrator François Hamelin, who said that the employer’s pattern of tolerance of misconduct, together with the employee’s sincere expression of regret for his actions, was sufficient reason to overturn the employer’s decision.
In this case1, the employer fired an employee for making offensive remarks about the appearance of one of the employer’s representatives on a private Facebook page to which about 80 of his co-workers had access.
The employer considered that the remarks contravened not only the company’s policy on the use of social media but also the Charter of Human Rights and Freedoms and the Civil Code of Québec in that they were an attack on the victim’s dignity.
The employee, who was a union steward, had complained on numerous occasions to the victim, who was responsible for the quality of the meals served to the employees. According to the victim, on numerous previous occasions, the employee had insulted her and used offensive language about her which she had in vain reported to her employer, but the employer had failed to take any specific action to reprimand the employee. The employee had also sent the victim three emails in the previous years which she said included intimidating remarks that she had also reported to her employer, but no action had been taken against the employee.
The employer’s only response was to send a general memo to all employees almost one year before the dismissal, in which it said that instances of disrespectful and inappropriate behaviour had been brought to its attention and that such behaviour was not only prohibited but would be punished.
However, the evidence showed that, immediately after he was suspended, while the incident was being investigated, as well as after he was dismissed, the union steward sent two emails to the victim in which he acknowledged the offensiveness of his remarks and apologized several times, even offering to make a public apology.
At the hearing, although the employee claimed that he did not know about the employer’s policy regarding use of social media at the time of the events, he also admitted that he knew he should not make defamatory or disrespectful remarks about his co-workers and the employer’s representatives. He repeated his apologies and regrets, admitting that he was given to outbursts and that he sometimes spoke without thinking.
The arbitrator found that the employer had proved that the remarks made on the Facebook page by the employee were an objectively serious offence, especially as they were premeditated. It was irrelevant that the remarks had been made outside working hours and off the premises since they concerned work relationships and a representative of the employer.
Nonetheless, given the employer’s tolerance of disrespectful behaviour by an employee that had been reported to it several times by the victim, the employee’s seven years of service, his clean disciplinary record and, especially, his sincere regret for his actions, expressed spontaneously at the time of the events and repeated later, the arbitrator found that the offence did not warrant the serious punishment of dismissal:
 With respect, I believe it would be unfair in such a lax environment for the employer to suddenly intervene and mete out the ultimate punishment, especially as the employee showed—after the fact it is true—that he was receptive to correction and aware of the need to modify his behaviour.
The arbitrator thus converted the dismissal to a suspension without pay from the date of the dismissal until the employee’s reinstatement date, representing a suspension of nine months.
This decision draws attention to the need for employers to make sure that employees are aware of policies governing the use of social media, workplace harassment and disrespectful language in the workplace and to enforce such policies consistently. The employer’s failure to punish offences appropriately can result in a dismissal being replaced by a less severe punishment, even where the offence is a serious one.
(Exploitation minière Canada, s.e.n.c.) et Syndicat des métallos, section
locale 5778, 2014 QCTA 351, François Hamelin, Arbitrator, April 24, 2014.