Off-Duty Conduct: Can you be Terminated over Tweets?

July 16th, 2015 by Alexandra Tratnik

Toronto Arbitrator Elaine Newman says you can. On November 12, 2014, the Ontario Labour Relations Board upheld the City of Toronto’s dismissal of Matt Bowman, a firefighter with 2.5 years of service, for inappropriate use off-duty use of his Twitter account.

Bowman’s Twitter account included a picture of himself posing in a Toronto Fire Services (“TFS”) uniform. Three of his tweets, published in an article by the National Post, read:

“Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.”

“I’d never let a woman kick my ass. If she tried something I’d be like hey! you get your bitch ass back in the kitchen and make me some pie!”

“The way to a woman’s heart is through anal.”

When the employer became aware of the offensive tweets, they suspended Bowman with pay pending an investigation. Bowman produced a letter of apology for his first interview with his employer and later completed a course in sensitivity training. During the course of the employer’s investigation, further offensive tweets were discovered. The tweets were found to be overtly racist or demeaning to women, ethnic minorities, homeless persons and persons with disabilities.

The employer alleged that Bowman’s tweets violated the employer’s human rights and social media policies and guidelines and harmed the reputation of TFS. TFS had recently launched a program through which it intended to increase the recruitment of female firefighters and those that represent the diversity of Toronto’s population.

In her analysis, Arbitrator Newman recited the test established in Re Millhaven Fibres Ltd. v. Atomic Workers Int’l Union, that provides that in order to uphold a dismissal on the basis of just cause arising out of off-duty conduct, there is an onus on the employer to prove that:

  • the conduct of the employee harms the employer’s reputation or product;
  • the employee’s behaviour renders the employee unable to perform his duties satisfactorily;
  • the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
  • the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the employer and its employees;
  • places difficulty in the way of the employer properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

Arbitrator Newman confirmed that the test requires an employer to prove any one of the above-noted criteria.

Newman noted that, over the past 4 decades since the Millhaven test was devised, cultural awareness and sensitivity in Canada has grown, along with the diversification of its communities and workplaces. As such, she expanded the fourth branch of the Millhaven test above to include a serious breach of human rights policies or the Human Rights Code.

The question to be asked is this: Would a reasonable and fair-minded member of the public, if apprised of all the facts, consider that Bowman’s continued employment would so damage the reputation of the employer so as to render that employment untenable?

Arbitrator Newman considered Bowman’s apology and candour at length. She found that he was not forthcoming, disclosed information selectively and was not fulsome in many of his responses. She also found that he was not candid or cooperative during the employer’s investigation.

Arbitrator Newman also considered the severity of Bowman’s conduct: she found that Bowman’s comments violated a number of fundamental workplace policies, that he promoted forms of discrimination intentionally among his followers and recklessly made this promotion available to the general public. She noted that his conduct was not an isolated incident, but that it was a course of conduct and took place over a period of about two years.

Arbitrator Newman found that actual damage to the employer’s reputation was caused by the National Post articles and their fallout and found potential damage has been caused to the employer’s ability to carry out its work, which includes implementation of its diversity initiative.

In determining that dismissal was the appropriate penalty in this case, Arbitrator Newman stated, “[Bowman] does not absolutely accept the proposition that his comments were offensive. He has said, repeatedly in his evidence, that ‘he can see how someone might consider them offensive.’ His words ring hollow. They do not reflect real appreciation of the degree to which his comments offend.”

The Arbitrator held that Bowman’s conduct harmed the reputation of his employer and impaired his ability to fulfill the complete range of responsibilities of a firefighter. She stated, “The job involves more than attending at a fire, or attending as the first responder when someone calls 911 for a medical emergency. It involves more than performing life saving interventions that he has learned and practiced. The other part of the job, the part that I am not convinced he can perform to satisfaction, is the part that requires him to conduct himself in a way that brings honour to the uniform. I have to wonder if a deaf person, a women in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.”

Arbitrator Newman’s Award may be found here.

What should employers take from this decision?

  • the importance of implementing and maintaining human rights and social media policies in the workplace
  • off-duty breaches of employers’ human rights policies or the Human Rights Code may be found to harm the employers reputation and be grounds for just cause dismissal
  • certain types of employees, for example, firefighters, nurses and police officers, may be held to a higher standard than other employees whose work is less intimate and does not involve serving the public or being in a position of trust

Be careful what you tweet!

Contact a member of the Employment Law group at Devry Smith Frank LLP to develop and update your workplace policies, including human rights and social media policies.

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