Employment & Labour

Panel found termination unjust, but refused reinstatement

A recent arbitration decision out of Alberta demonstrates the fact that a worker’s reinstatement can be refused even when their termination was found to be unjust, says employment lawyer Arthur Zeilikman.

The case dealt with a City of Calgary union employee who was investigated after being accused of spending too much time using the city’s computer system for personal reasons. Not only was his misuse of the computer system confirmed, reports Canadian Employment Law Today, but 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 the man's position, and the union challenged the termination on his behalf, says the report.

The arbitration panel found that some measure of discipline was warranted given the man’s misconduct, but ruled the city had fallen short of establishing that termination was warranted. The panel also noted the employee had a clean discipline record, says the report.

Despite the fact that the presumptive remedy would typically be reinstatement in this type of scenario, the panel refused to make such an order, says the article.

After being terminated, the man wrote two lengthy Facebook messages, says the report, accusing his manager — by name — of “falsifying documents to set him up for termination.” The man referred to the manager as “evil,” an “ugly person,” and a “witch,” says the report.

In its decision, the panel found that the Facebook messages were extremely serious forms of misconduct, and that neither the man nor the union could realistically expect that he would return to work for the city, reports Canadian Employment Law Today.

Zeilikman, of Zeilikman Law, was not involved in the case, but says in general, it serves as a cautionary tale for employees who may wish to vent frustrations online.

“Employees have to understand that if what you do outside of work has a bearing on your employer’s reputation or, as in this case, if you are insolent towards your employer, it may have an impact on your employment,” Zeilikman tells AdvocateDaily.com.

“The medium in which an employee expresses their opinion doesn’t really make a difference, whether it’s Twitter, Facebook, or another site. If there are insults directly against the employer, that may amount to termination with cause or serve as a post-termination factor when reinstatement is the employee’s desired goal in the unionized context.”

In today’s digital age, Zeilikman says social media is often part of the conversation he has with clients at the outset of a case.

“I tell my clients not to post anything that may hurt them,” he says. “There is a lot more case law being developed around these issues and it’s starting to make people understand that even though Facebook has privacy settings, what you say there is there to stay and usually there for the world to know.”

Zeilikman says it’s not uncommon to have opposing counsel in such cases immediately ask for an undertaking not to delete anything from a party’s Facebook page from that date forward.

“These issues are definitely in the forefront of many cases today,” he says.

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