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'Facebook Message = Firing'

How romantic interest, Facebook and recruitment collide.

Mr Jobs was discharged in September 2009 for engaging in instances of personal harassment, misrepresentation and intimations of unauthorized and improper interference with the Employer’s system with respect to a summer student of an affiliated Employer.

Mr Jobs was the Web Administrator for five years. His duties and responsibilities included designing, building, and maintaining the Employer’s Internet and Intranet sites. He also had some responsibilities in Corporate communications and Media relations.

Ms Lea was a 24 year old summer student working for an affiliated Company. She was in a Technical Program at a local College and hoped to graduate in a year and seek employment with the Employer. As part of her summer duties,Ms Lea was required to facilitate in the planning for the annual golf tournament and she sought Mr Jobs’ assistance in placing registration information on the Employer’s Intranet.

Mr Jobs agreed to help and they spoke on the phone. During this call, Mr Jobs mentioned his hometown and Ms Lea just happened to be from a town close by. They spent sometime talking about the area and their plans for the upcoming long weekend. Later that night Ms Lea ‘friend requested’ Mr Jobs on Facebook and he accepted.

The two spoke by telephone a number of times over the next few weeks about the tournament. They also continued to discuss personal matters. During one of the calls, Mr Jobs asked for Ms Lea’s home phone number and she gave it to him. They talked occasionally over the phone at night and chatted on Facebook, but as friends and not in a romantic way.

Towards the end of August the two of them discussed meeting in person for the first time. They agreed to go hiking and out to dinner in celebration of Ms Lea’s birthday two weeks later. By that time Ms Lea had finished her summer job and returned to school, which involved moving. She gave Mr Jobs her new phone number.

Girlfriend Comment

A couple of days before their scheduled plans, they spoke on the phone to finalized them.Mr Jobs told Ms Lea that he did not want to introduce her to his friend Mr Ballmer because he always “hit on his girlfriends.”

Ms Lea found the comment disturbing and became concerned about Mr Jobs’ intentions in meeting her. She had not yet met him in person and he was now referring to her as his ‘girlfriend.’ She had never considered him to be more than a platonic friend and was not interested in any relationship beyond that.

Stood Up

Ms Lea said nothing of her concerns during the phone call but decided not to meet Mr Jobs as planned. She sent Mr Jobs a Facebook message advising him that he may have gotten the wrong impression and that she only meant for the two of them to be friends.

Mr Jobs did not check his Facebook account for a couple of days so did not receive Ms Lea’s message. Unaware that Ms Lea had concerns or that she had decided not to meet as planned, he phoned her on his way home from work. She did not answer his call so he left a message. He did not hear back so he proceeded to call a couple of more times over the next few hours. Finally, he decided that he had been ‘stood up’ so he stopped calling. He was angry and hurt.

Reaction

A few days after the planned meeting, he checked his Facebook page and discovered then the message Ms Lea had left for him days earlier. He replied: “What do I care about someone like that? Obviously your MO is to lead on as many guys here as possible to try and secure yourself a job. Good luck with that…gee maybe you should have thought about how much power and influence I have over the HR dept and all of their computer systems before you treated me like shit and jeopardized all of your career aspirations. Try to figure THAT out yourself. You’ll have plenty of time to reflect on it when you’re working at Tim Horton’s for the rest of your life. TTYN [Talk To You Never]”

After sending the message he disconnected the Facebook connection so they could no longer exchange messages.

Fears

Mr Jobs did not have the ability to undermine or ruin Ms Lea’s job prospects but she certainly perceived the threat as real. She perceived Mr Jobs to be in a position of power as the Web Administrator. She realized that to apply for work with the Employer would require an on-line application and she feared that Mr Jobs could filter her application to ensure she did not get a job.

Ms Lea was frightened and concerned so brought the situation to the attention of the Employer.

Investigation

Mr Jobs was advised by a manager that because of his interactions with Ms Lea, he was to leave the premises and he did so. He was not told any details of the allegations. Uncertain about why he had been removed from work and realizing that he was in some trouble, Mr Jobs phoned Ms Lea that night, both to find out what was going on and to apologize if necessary. Ms Lea said that she should not be talking to him and hung up quickly.

Later that week Mr Jobs was called to a meeting with management. He asked if he would have an opportunity to apologize to Ms Lea. He was told to have no contact with her and was given a letter terminating his employment.

Mr Jobs filed a grievance and an Arbitration ensued.

Arguments

The Employer argued that the termination was justified. They noted Mr Jobs had a position of importance and responsibility including duties involving meeting with members of the public and media. They argued Mr Jobs knew Ms Lea was a young student who was seeking a career with the Employer and she would have understood him to have a senior position of authority and responsibility. They argued that he sent her a message designed to threaten her over job prospects, intended to cause her pain and anguish and succeeded in doing so. The Employer submitted that Mr Jobs’ behaviour was disgraceful and reflected poorly on the organization.

The Union agreed the improper conduct was significant. However, they argued that there was no reason given as to why a lesser penalty was not given. They argued Mr Jobs did not have the intent or the ability to carry out his threat. They submitted that Mr Jobs was credible, candid, and remorseful, fully acknowledging his misconduct and taking full responsibility for it and his apology was sincere and complete when he was allowed to give it.He had no prior disciplinary record and the Union maintained that discharge was too severe a penalty and suspension ought to be substituted.

Decision

Should Mr Jobs be reinstated and a suspension be substituted? What was the decision? Follow us on Twitter http://twitter.com/HillAdvisory to find out!

Environment is No Defense

How swearing in the workplace is unacceptable anywhere

The Employer operates Government controlled liquor distribution. Shane is a long service employee of the Employer and had worked for them for 30 years. Londa is the Store Manager and Shane has had issues with her from the start. Caroline was hired for a short term over the holiday season.

The case concerns the dismissal of Shane for behaviour contrary to the Standards of Conduct. More specifically, it is alleged that Shane engaged in conversations with co-workers during which he made defamatory and demeaning remarks against the store manager. Shane had engaged in similar behaviour in the past and had been disciplined for it. On this occasion, Shane was fired and he filed a grievance.

The events occurred in late December. The most significant incident is alleged to have occurred on December 24th. On that day, Caroline was on till and became involved in a dis- pute with a customer. Londa came over to help and asked Caroline to step away. On her way to the back of the store, Caroline stopped to ‘vent’ with Shane. During the conversation Caroline said Shane made remarks directed at Londa as well as another employee, Edina. In particular, he called Edina a“f***ing bulldog”and Londa a“f***ing b**ch”. Customers were in the area when the comments were made.

Caroline talked to Londa about the conversation and shared the names Shane had called her. Caroline took notes of their conversation and asked Caroline to forward her an email with the information. Shane had a history of calling Londa the same name and worse names in the store.

Shane denied making any comments like the ones reported. He did admit he used the ‘F’ word and was sure he had used the terms ‘incompetent’, ‘b**ch’ and had said Londa was ‘in over her head.’ He felt Londa was a ‘b**ch’ because of the way she ‘baited’ and ‘bullied’ him.

Employer Position

The Employer argued that Shane’s conducting challenging Londa’s managerial decisions, belittling her by use of various derogatory names was tantamount to harassment. They asserted that Shane was unable or unwilling to change his behaviour and had no insight, remorse or apology. They argued the termination was justified and required to protect other employees from a poisoned work environment.

With respect to the specific allegation of Shane’s comments on December 24th, the Employer argued that evidence showed Shane had used the terms in the workplace, and that he generally used profanity without hesitation. They also referred to his admission he called Londa other names.

The Employer stated Shane’s disciplinary history supported a conclusion that discharge was an appropriate sanction. Shane had received a one-day suspension in 1993, followed by increasingly severe discipline, including a two-day suspension in July 2005 and a three-day suspension in November 2005. The discipline was for either inappropriate actions towards co-workers or management.

The Employer argued Shane’s conduct was not a momentary aberration but a continuation of his previous conduct that had attracted discipline in the past, despite clear direction from the Employer that such conduct was not acceptable.

Further, Shane’s contempt carried through to his testimony at the hearing. Rather than accept responsibility for his actions Shane said he believed that he was entitled to continue with his behaviour if he feels he has been demeaned in the workplace.

Union Position

The Union acknowledged that Shane’s conduct did give rise to just cause for some form of discipline but argued that discharge was an excessive penalty.

They pointed to the letter of termination, and the Employer’s investigation, focussed on a specific incident and no allegation against Shane regarding comments made about a co-worker.

The Union disagreed with the Employer’s characterization of Shane’s comments as disrespectful and inappropriate, since at that specific location many employees routinely used such language. They argued there was a ‘culture of swearing’ at the workplace.

The Union argued the 1993 discipline was stale,given that Shane worked for another twelve years without discipline. They also argued that the other discipline involved situations that did not include abusive conduct, but rather a dispute with another manager.

They argued that although Londa stated Shane made offensive comments in front of co-workers and customers, there was no evidence of customer complaints and no reference in the termination letter to comments having been made in front of customers.

The Union contended that Caroline – a junior, seasonal employee lied about the events.They referred to a difference in where she said the conversation occurred and inconsistencies in Londa’s notes and Caroline’s email. They also argued that although Caroline said she was shocked by Shane’s comments and wanted to get away from him, she accepted a ride home from him even though she had other options

The Union argued that the employment relationship could be restored and that Shane should be reinstated.

Decision

The arbitrator looked at the conflicting evidence from Caroline and Shane.He felt that Shane’s version of events was more credible and he based that decision on the conflict between Caroline stating she was uncomfortable around Shane, yet asking him for a ride home when there were other options that she had used before. The arbitrator also referred to the inconsistency with Londa’s notes and Caroline’s email.

The arbitrator ruled that he was unable to accept Caroline’s evidence with respect to the events of December 24th. Specifically that the evidence was not compelling to find Shane had made the com- ments in the store and in front of customers.

He turned to the other aspects of Shane’s conduct, some of which were undisputed, that justified a disciplinary response. Shane had admitted to calling Londa a ‘b**ch’ and making derogatory remarks about her managerial skills. These comments were made in the workplace.

The arbitrator was aware that other employees made similar comments, and addressed the Union’s contention of a ‘culture of swearing.’ It was noted that many of the employee’s did use profane language. However, the arbitrator ruled that there was no doubt the Employer considered that type of behaviour to be inappropriate. He ruled that Shane’s comments would certainly be considered offensive had they been said directly to Londa and that they had clear and unequivocal meaning. He noted Shane’s comments were cutting, crude and inappropriate.

The arbitrator ruled the employment relationship was not irreparable and reinstated Shane with a 30 day suspension and two conditions.

Breach Confidentiality At Your Own Risk

Managing progressive discipline important too

The Employer provides heat treatment services in industrial plants and Gerry worked in Alberta. Mary worked in the same office and conducted Administrative tasks. Joe was the Operations Manager and was married to Mary.

One day Mary disclosed to Bob, the Regional Manager, that Gerry had ‘grabbed her bum’ in the office. The Employer commenced an investigation and conducted interviews of both Mary and Gerry. Gerry denied ever touching Mary. The Employer determined that it would be necessary to separate Gerry and Mary during the investigation and further concluded it would be impossible to do so within the small office in Alberta. The matter was further complicated by the fact that Mary’s husband was Gerry’s supervisor.

The Employer wanted to keep the matter confidential while the investigation into the allegation of sexual harassment proceeded. They quickly transferred Gerry to a plant in Ontario and cautioned him to keep the matter confidential.

The Employer first raised the issue with Gerry in the morning one day. By the afternoon of that same day Gerry had packed his bags and was on a flight to Ontario. Gerry was extremely upset by what he considered to be false allegations and unfair treatment. He told a number of employees about the allegations and his forced transfer to Ontario. The information swept through the company leading to wide-spread gossip among employees and resulted in the complainant being identified. This was exactly what the Employer had hoped to avoid.

The Employer concluded through it’s investigation that it was inconclusive whether Gerry had in fact grabbed Mary’s ‘bum.’ Nevertheless, they terminated Gerry’s employment for breaching a direction to keep the matter confidential while the investigation proceeded. Gerry filed a grievance claiming he was dismissed without just cause.

Initial Allegation

Bob had lunch with Mary and Joe one day when he was in the office in Alberta. Mary told him that Gerry had grabbed her ‘bum’ as well as some other concerns. They discussed how the matter should be dealt with. Mary and Joe were embarrassed and wanted to keep this matter quiet.

The Employer had a “Workplace Harassment Policy” that outlined procedure which included getting the VP of HR (Frank) involved. Frank was advised and phoned Mary to obtain details of the allegation. Frank then called Bob and asked to speak with Gerry over the phone.

Frank was the first Employer agent to apprise Gerry of the allegations. Gerry denied them and after the phone call,Bob began to discuss the process with Gerry. He said that an investigation would be undertaken and that first and foremost maintaining privacy was very important. Bob advised Gerry that they needed to contain it as much as possible since that would protect everybody including Gerry. Bob told Gerry that only a limited number of people knew about the matter. Bob believed Gerry accepted and understood that it was important to maintain privacy although Gerry did not expressly state that he agreed or disagreed with the instruction.

Separation

Frank contacted Bob later on and advised that the procedure was to separate employees during an investigation. Bob replied it would be difficult with in Alberta as it was a very small office. Gerry was given the option of resigning and returning to his home in the Maritimes (the Employer would pay for the flight) or of working with another area of the Employer in Ontario. He chose to take the transfer to Ontario. Bob arranged for a flight that day, advised Gerry to pack and drove him to the airport that afternoon.

During the arrangements, Bob received a call from Lance, a Union Rep who wanted to know the details of the allegations. Bob did not want to discuss them.

Bob returned to his workplace the following day and when he arrived, he noticed the workplace was in an uproar and everybody knew of the allegations against Gerry.

Breach Confidentiality

It was alleged that Gerry called a number of people and told them of the allegations against him. Mary indicated she was even asked about the allegations by two servers at a local restaurant. Gerry talked to members of his family, friends, Union Rep’s, supervisors, and co-workers.

Termination

Bob emailed Frank an update that day and indicated that he had coached Gerry, Mary and Joe to keep the matter confidential. He indicated Gerry called a number of coworkers and told them everything hoping to get the Court of public opinion on his side. He indicated that Gerry had decided to de-rail their process and that he had instructed the site in Ontario to lay off Gerry. Frank responded that same day and indicated that based on the information provided he would terminate Gerry immediately for insubordination. They believed Gerry violated his trust when he espoused to everyone the ‘results of our investigations’ and that confidentiality in any internal investigation was critical for the benefit of every employee involved.

Under Consideration

The Arbitrator held that the sole matter under review was the issue of insubordination and did not deal with the matter of the initial allegation. In order to assess the matter of insubordination, the Arbitrator identified four essential elements; 1) An order was in fact given, 2) The order was clearly communicated to the employee, 3) The order was given by someone with the proper authority and 4) The employee either refused to acknowledge the order or actually refused to comply with it.

Conclusion

The arbitrator found that although a specific, direct order had not been explicitly given, it was clear that the Employer wanted Gerry to keep the matter confidential. He found Bob had the authority to give the order. The arbitrator turned to the matter of the circumstances and details of the conversations Gerry had about the allegations. He found that some of them were valid and did not fault Gerry for them, however he found that there was no need to tell several of the people that he did.

The arbitrator considered the level of discipline and determined termination was excessive. He based the decision of a analysis off actors including; a direct order had not been given, there was no warning that termination could occur, no progressive discipline had been followed, and Gerry was a good employee with no previous discipline.

Gerry asked to be reinstated. The Arbitrator concluded that such a situation would be a disaster for all as Mary and Joe still worked in the office. He concluded that the employment relationship was no longer viable due to the culpable conduct of Gerry in breaching confidentiality. He concluded that he would not reinstate Gerry but rather awarded damages.