Ontario Arbitrators Rule in Separate Cases On Employee Uses of Facebook, Twitter

By Jeremy Hainsworth

Nov. 3 — Ontario labor arbitrators in separate disputes rejected a bus driver's request for reinstatement after he went to Las Vegas while on sick leave and rescinded the termination of a firefighter who allegedly made inappropriate remarks about women on Twitter.

In the first arbitration, bus driver Pranav Bedi lied to his doctor about back pain to get a sick note, told his employer he needed to take four sick days, then flew to Las Vegas for his bachelor party, arbitrator Owen B. Shime wrote in an arbitration award publicly released Nov. 4.

Bedi raved about his trip on his Facebook page, which, the arbitrator said, was available for public viewing because he hadn't activated privacy settings.

Shime said when Bedi went to Las Vegas, all his vacation days for 2013 were used because he had arranged six weeks of leave time, starting Dec. 28, 2013, to travel to India for his wedding.

Bedi's employer, the Toronto Transit Commission, learned of his fraudulent sick leave from an anonymous tip, which it verified by checking Facebook, the arbitrator wrote.

‘Life Can't Get Better!'

According to the arbitrator's decision, in a Dec. 14, 2013, Facebook post, Bedi said, “Vegas tonight! Can't wait! Brother's bachelor party is gonna be fun! OMG can't wait! Countdown starts! Another 3 hours to go! Yay!! Yet another place to visit! Life can't get better! Loving it.”

When Bedi returned to work Dec. 20, and was confronted by his employer, Bedi said he had been sick, Shime wrote. Following an investigation, Bedi was fired after returning to his job in February 2014, and he subsequently admitted he had falsely said he had been sick, the arbitrator wrote.

Shime found just cause to discharge Bedi, saying he had “engaged in a premeditated course of conduct that was blatantly fraudulent.” Shime rejected Bedi's request for reinstatement.

Social Media Policy Not Publicized

In the second matter, arbitrator Gail Misra Oct. 14 rescinded a firefighter's termination based on comments about women he allegedly made on Twitter. She substituted a three-day suspension.

A newspaper article relied on by Toronto Fire Services alleged that firefighter Lawaun Edwards engaged in a Twitter conversation in which he suggested giving a woman a “swat in the back of the head” to “reset the brain,” the ruling stated.

Following investigatory meetings with Edwards on Aug. 19 and Aug. 26, 2013, other information given by the firefighter was relied upon as reason to end his employment, according to the ruling. In particular, the employer believed a tweet in which the firefighter allegedly wrote “go get it sweetie” was inappropriate, as was his alleged use of derogatory ethnic and racial terminology in another tweet that came to the employer's attention from an outside source, the arbitrator wrote.

Employee Thoughts Tweets Were Private

Edwards testified that he believed his tweets were private to the person he sent them to, although he also said he understood that he had followers and followed others on Twitter, according to the arbitration award.

The employer said the Twitter comments were inappropriate; were contrary to Toronto policies and guidelines; and they had harmed the reputation of the fire department and Toronto; undermined the department's efforts to foster a diverse and welcoming workplace; and eroded trust and respect within the workplace and the community served by the department, the ruling said.

The Toronto Professional Fire Fighters' Association said the termination was excessive and sought reinstatement with full compensation for any income loss or expenses incurred by Edwards.

Misra wrote that termination was too harsh a punishment. She also wrote that “while the Employer had policies regarding the use of social media, prior to the Grievor's termination from employment, it had not publicized those policies as well as it might have done given the wide-spread use of such media.”

The tweet “was not directed at anyone in the workplace, and appears to have been an isolated instance,” Misra said.