Redress Risk Management (post until May 31/19)
Employment & Labour

Millhaven test likely to be ‘influential’ moving forward

An Ontario arbitrator’s recent move to expand the reach of employee off-duty conduct by extending a branch of a well-known legal test for justifying termination represents an inevitable step forward – but one that must be taken with caution, says Toronto employment lawyer Arthur Zeilikman.

In September 2013, Toronto firefighters Matt Bowman and Lawaun Edwards 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 Edwards, the arbitrator substituted a three-day suspension for his discharge, while Bowman’s termination was upheld in what is believed to be one of Canada’s first Twitter firing cases.

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. Newman 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?”

Zeilikman, of Zeilikman Law, says the expansion of the test reflects the notion that certain acts of misconduct that may not fall within the Criminal Code may still warrant termination.

“I think it’s an inevitable move forward,” says the employment lawyer. “Speaking in general terms, is punishing politically incorrect statements a good thing? I don’t think so. I certainly think freedom of speech is extremely important, but speech that leads to negative consequences for your employer has a limit. When you’re employed, the employer has a certain reputation and integrity to maintain with the public. Public service employers have even more at stake.”   

While arbitrators will not be bound by Newman’s expansion of the test moving forward, Zeilikman says the updated portion will certainly be influential and likely cited in future cases.

Both Bowman and Edwards were fired after the 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.

The cases share several of the same themes, but each unfolded differently.

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.

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 testified he did not understand that his tweets could be accessed by members of the public.

He 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.

In an interview with AdvocateDaily.comZeilikman says the idea that statements made online are private is not always true in today's digital world.

“Don’t think that what you’re posting online is just for your out-of-work consumption,” he says. “Whatever happens on your off hours may have an impact – and rightly so – on your employer’s reputation and on your job.”

Zeilikman says Bowman’s age likely had an impact on the ruling as well.

“I would argue that had he been employed for 20 years, the arbitrator may have taken a different position,” he says. Bowman was employed by the service for 2.5 years, the decision reads.

“Further, a 27-year-old is born in the Internet age. They know what it is. I think that’s a huge factor, even though it’s not specifically stated,” says Zeilikman.

In terms of the case being one of Canada’s first Twitter terminations, Zeilikman says no matter what the medium, the message remains the same.

“At the end of the day, Twitter, Facebook, Instagram … whatever source of online medium you choose, most of the time what you communicate will be presumed to be for public consumption,” he says. “You have to understand it will have a bearing on the brand of your employer, which may result in termination.”

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