Nelligan O'Brien Payne gratefully acknowledges the contribution of Alessia Petricone-Westwood, Student-at-Law in writing this article.
In a recent labour arbitration decision, Toronto (City) and IAFF, Local 3888 (Edwards), Re,1 the Arbitrator reinstated a firefighter, Lawaun Edwards, who was terminated for a series of social media comments posted on Twitter while he was off-duty. Some of these comments were included in a National Post article published on August 9, 2013.2 The article reported that Edwards had engaged in a Twitter conversation in which he suggested giving a woman a “swat on the back of the head” to “reset the brain.” The article also noted that one month prior, the Toronto Fire Services (“TFS”) had indicated in a Path to Diversity report that it wanted to recruit more women and visible minorities. Of the tweets discussed in the article, only one was composed by Edwards. All the others were posted by another firefighter. However, the article concluded that these comments suggested that the culture among firefighters would not be welcoming to women.
The National Post article spurred the TFS to investigate Edwards. During the investigation, two other tweets were provided to the TFS, one where Edwards wrote “go get it sweetie” and another where he used derogatory ethnic and racial terminology. The TFS terminated Edwards on the grounds that the comments were inappropriate and damaging to the City’s and TFS’ reputations.3 The Toronto Professional Firefighters Association, Local 3888 (the “Association”) grieved Edwards’ termination and claimed that it was excessive discipline.
The City of Toronto and TFS relied on the first “Millhaven criteria,” that Edwards’ conduct, through his tweets, had harmed the employer’s reputation. The Arbitrator found that firefighters are public servants who represent one of the “public faces of the City” and that the TFS and the City had a legitimate and significant interest in ensuring that firefighters “conduct themselves in a dignified and respectful manner in their relations with the public.”4
The Arbitrator applied the test found in Ottawa-Carleton District School Board and OSSTF,5 namely that “in order for an employee’s off-duty conduct to provide grounds for discipline or discharge, it must have a real and material connection to the workplace.”6 The real and material connection is an objective test: what would a reasonable and fair minded member of the public think if apprised of all of the relevant facts?7
Edwards’ tweets resulted in negative press for the TFS at a time when it sought to diversify its hiring practices. National Post articles are widely available to people in Toronto and across the country. The Arbitrator found that “the City of Toronto and the TSF have a reputation to protect, and must be seen to be places of employment where women and racialized persons are welcomed and treated with respect.”8 Concern with its reputation was thus a valid reason for investigating the tweets.
The Arbitrator then considered whether Edwards’ tweets, posted when he was off-duty, had a real and material connection to the workplace. One consideration was the public nature of the tweets. The Arbitrator found that there “was no basis for the Grievor to believe that his tweets were private.” Another consideration was whether Edwards’ had identified himself with his workplace in any way. At some point, Edwards’ Twitter profile stated that he was a “Toronto Firefighter.” Despite this, Edwards did not state in his profile that any comments he made were his own personal views and not that of his employer.9 The Arbitrator found that Edwards’ Twitter profile established a connection between himself, as a private citizen and his employer, the TFS.
Applying this “reasonable person” standard, the Arbitrator found that the “swat to the back of the head” tweet was inappropriate and could be seen as more generally demeaning towards women.10 However, when read in context, neither the “sweetie” tweet nor the tweet using a racist term was found to be objectively offensive or inappropriate. The Arbitrator found that termination was too harsh a penalty for that comment, and she substituted the termination with a three day unpaid suspension.
Tips for Employees
Employees who engage in social media should be cognizant of the fact that their words and posts may be linked to their employers and have the potential to damage reputations. This is especially the case if the employee has a public role and may be held to a higher standard within society. As such, employees should be careful about what they post through social media, and should ensure that there is no link to their employer on their personal social media pages (Linkedin is likely an exception), as well as clearly articulate in their profile that the views expressed are their own and not those of their employer.
12014 CarswellOnt 16474 [Edwards].
2Ibid at para 17.
3Ibid at para 3.
4Ibid at para 160.
5(2006), 154 LAC (4th) 387.
6Edwards, supra note 1 at para 158.
8Ibid at para 162.
9Ibid at para 182.
10Ibid at para 192.