Saucy Tweet Results in For Cause Termination of Employee
February 2020
Article by:
Mike Hamata
By Roper Greyell partner, Mike Hamata and articled student, Sylvia Nicholles
Previously published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada
Fastenal Canada terminated B.C. employee Hussien Mehaidi for expressing his outrage on Twitter for the company’s Christmas gift of Gets Sauced BBQ sauce and a company branded wooden scraper.
Mehaidi tweeted from an anonymous account with zero followers a tweet which read: “what kind of multi-billion dollar company gifts its Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday gift box!”
The tweet also tagged the company’s American and Canadian Twitter handles. Mehaidi and his co-workers were used to receiving the same holiday box as their American counterparts, hence the saucy tweet.
While Mehaidi quickly removed the tweet, which had not attracted any online attention, Fastenal made the decision to terminate for cause. Fastenal defended the termination stating Mehaidi was in contravention of the company’s standards of conduct policy on social media posts and as a branch manager, he ought to have known better.
Mehaidi confirmed to media he has obtained a lawyer and intends to move forward with a wrongful dismissal claim.
This situation is reminiscent of a recent dispute involving a mother who was caught using company property for her daughter’s Instagram videos. Last year, Instagram star Lil Tay’s mom, Angela Tian, left her position as a real estate agent after it was revealed she was filming Lil Tay’s videos at work and in her employer’s Lamborghini. These videos also involved her 9-year-old daughter using vulgar language. The company determined they should go their separate ways which does not appear to have been challenged by Tian.
Will Mehaidi go the way of Lil Tay’s mom? Or will a court decide his saucy tweets are not deserving of termination for cause?
Arbitral law may provide some guidance on the factors a court will consider in determining whether Mehaidi’s disgruntled holiday tweet is grounds for termination. Two 2014 decisions serve as a reminder of when an employee’s social media posts cross the line into misconduct.
In Campeau v. Yellow Quill First Nation [2014] CLAD No 217, the grievor’s termination was upheld for, among other reasons, destroying her working relationship with her supervisor. Part of the destruction was her Facebook posts where she publicly attacked the employer’s services and ridiculed her supervisor by accusing him of lying and incompetence.
As some of her Facebook friends were band members who accessed the employer’s services and knew the supervisor personally, the employer justified termination based on the grievor’s breach of the employer’s policies regarding confidentiality and employee relations. Arbitrator Daniel Cameron upheld her dismissal finding the grievor was told she had to improve her relationship with her supervisor and failed to do so and so was in breach of the employer’s policies.
Similarly, in Toronto (City) v. Toronto Professional Fire Fighters’ Assn. Local 3888 (Bowman Grievance) [2014] OLAA No. 507, arbitrator Elaine Newman upheld the dismissal of a grievor who harmed the reputation of his employer when he publicly posted sexist, misogynist and racist tweets from his Twitter account which identified him as a Toronto firefighter.
In finding the employer’s reputation had been damaged by the tweets, Newman considered the ability of the employer to implement its diversity initiatives if it continued to employ a firefighter who would publicly post discriminatory comments on social media and concluded this would be detrimental to the employer’s ability to recruit diverse candidates.
In contrast, a recent decision of B.C.’s Workers’ Compensation Appeals Tribunal (WCAT) provides guidance on when social media posts are not considered bullying and harassment. In A1800306 the worker appealed a decision of the Workers’ Compensation Board to deny compensation for a mental disorder the worker alleged stemmed from bullying and harassment both in her workplace and on Facebook.
The worker alleged three of her co-workers bullied and harassed her by posting a sign at her work stating which read “Hooooore.” One of her co-workers posted the same message on Facebook along with a meme which said “Don’t mistake this fake smile and professional body language, I’d punch you in the throat if I knew I wouldn’t lose my job.” The two other co-workers “liked” the meme.
The meme was followed by a comment: “I feel like I’ve heard that before … Want a cookie with that?” the other two co-workers responded by posting laugh emojis. As the worker often went for cookies with the three co-workers, she believed the posts to be about her. She further alleged the three co-workers were laughing and whispering about her at work.
She believed them to be mocking her. When the worker reported the allegations to her manager, the manager discussed these with the co-workers who denied the posts were about the worker. One coworker was issued a letter of expectation regarding the employer’s respectful workplace policies, another was issued a letter of reprimand in regard to her social media posts.
The Review Division officer determined the incidents to not be significant stressors, and the social media posts were not aimed at the worker. The whispering and laughing were not behaviour intended to humiliate or intimidate the worker, and so the behaviour did not constitute bullying and harassment.
The worker appealed this decision to WCAT. Vice-chair Sherelle Goodwin upheld the review officer’s decision that the worker’s mental disorder did not arise out of the alleged series of workplace stressors, as the incidents were not considered to be significant workplace stressors under the Workers’ Compensation Act jurisprudence.
Off-the-cuff comments made by employees disparaging their employer on social media may be grounds for termination if the employer’s policies are breached, the employer’s reputation is harmed, or the working relationship is destroyed.
Further, social media posts about other employees could form the basis for a bullying and harassment complaint. If the case of the saucy tweeter makes it way through the courts, it will provide further clarification as to when employers may terminate for cause when an employee decides to take to social media to complain about their employer.
The saucy tweet may not rise to the same level as the social media posts in Campeau or Bowman. However, if Fastenal Canada’s policy regarding social media posts was breached by Mehaidi, a court may hold termination to be justified as he was in a supervisory position and he publicly disparaged his employer by saucily tweeting about its Christmas gift.
February 2020
By Roper Greyell partner, Mike Hamata and articled student, Sylvia Nicholles
Previously published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada
Fastenal Canada terminated B.C. employee Hussien Mehaidi for expressing his outrage on Twitter for the company’s Christmas gift of Gets Sauced BBQ sauce and a company branded wooden scraper.
Mehaidi tweeted from an anonymous account with zero followers a tweet which read: “what kind of multi-billion dollar company gifts its Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday gift box!”
The tweet also tagged the company’s American and Canadian Twitter handles. Mehaidi and his co-workers were used to receiving the same holiday box as their American counterparts, hence the saucy tweet.
While Mehaidi quickly removed the tweet, which had not attracted any online attention, Fastenal made the decision to terminate for cause. Fastenal defended the termination stating Mehaidi was in contravention of the company’s standards of conduct policy on social media posts and as a branch manager, he ought to have known better.
Mehaidi confirmed to media he has obtained a lawyer and intends to move forward with a wrongful dismissal claim.
This situation is reminiscent of a recent dispute involving a mother who was caught using company property for her daughter’s Instagram videos. Last year, Instagram star Lil Tay’s mom, Angela Tian, left her position as a real estate agent after it was revealed she was filming Lil Tay’s videos at work and in her employer’s Lamborghini. These videos also involved her 9-year-old daughter using vulgar language. The company determined they should go their separate ways which does not appear to have been challenged by Tian.
Will Mehaidi go the way of Lil Tay’s mom? Or will a court decide his saucy tweets are not deserving of termination for cause?
Arbitral law may provide some guidance on the factors a court will consider in determining whether Mehaidi’s disgruntled holiday tweet is grounds for termination. Two 2014 decisions serve as a reminder of when an employee’s social media posts cross the line into misconduct.
In Campeau v. Yellow Quill First Nation [2014] CLAD No 217, the grievor’s termination was upheld for, among other reasons, destroying her working relationship with her supervisor. Part of the destruction was her Facebook posts where she publicly attacked the employer’s services and ridiculed her supervisor by accusing him of lying and incompetence.
As some of her Facebook friends were band members who accessed the employer’s services and knew the supervisor personally, the employer justified termination based on the grievor’s breach of the employer’s policies regarding confidentiality and employee relations. Arbitrator Daniel Cameron upheld her dismissal finding the grievor was told she had to improve her relationship with her supervisor and failed to do so and so was in breach of the employer’s policies.
Similarly, in Toronto (City) v. Toronto Professional Fire Fighters’ Assn. Local 3888 (Bowman Grievance) [2014] OLAA No. 507, arbitrator Elaine Newman upheld the dismissal of a grievor who harmed the reputation of his employer when he publicly posted sexist, misogynist and racist tweets from his Twitter account which identified him as a Toronto firefighter.
In finding the employer’s reputation had been damaged by the tweets, Newman considered the ability of the employer to implement its diversity initiatives if it continued to employ a firefighter who would publicly post discriminatory comments on social media and concluded this would be detrimental to the employer’s ability to recruit diverse candidates.
In contrast, a recent decision of B.C.’s Workers’ Compensation Appeals Tribunal (WCAT) provides guidance on when social media posts are not considered bullying and harassment. In A1800306 the worker appealed a decision of the Workers’ Compensation Board to deny compensation for a mental disorder the worker alleged stemmed from bullying and harassment both in her workplace and on Facebook.
The worker alleged three of her co-workers bullied and harassed her by posting a sign at her work stating which read “Hooooore.” One of her co-workers posted the same message on Facebook along with a meme which said “Don’t mistake this fake smile and professional body language, I’d punch you in the throat if I knew I wouldn’t lose my job.” The two other co-workers “liked” the meme.
The meme was followed by a comment: “I feel like I’ve heard that before … Want a cookie with that?” the other two co-workers responded by posting laugh emojis. As the worker often went for cookies with the three co-workers, she believed the posts to be about her. She further alleged the three co-workers were laughing and whispering about her at work.
She believed them to be mocking her. When the worker reported the allegations to her manager, the manager discussed these with the co-workers who denied the posts were about the worker. One coworker was issued a letter of expectation regarding the employer’s respectful workplace policies, another was issued a letter of reprimand in regard to her social media posts.
The Review Division officer determined the incidents to not be significant stressors, and the social media posts were not aimed at the worker. The whispering and laughing were not behaviour intended to humiliate or intimidate the worker, and so the behaviour did not constitute bullying and harassment.
The worker appealed this decision to WCAT. Vice-chair Sherelle Goodwin upheld the review officer’s decision that the worker’s mental disorder did not arise out of the alleged series of workplace stressors, as the incidents were not considered to be significant workplace stressors under the Workers’ Compensation Act jurisprudence.
Off-the-cuff comments made by employees disparaging their employer on social media may be grounds for termination if the employer’s policies are breached, the employer’s reputation is harmed, or the working relationship is destroyed.
Further, social media posts about other employees could form the basis for a bullying and harassment complaint. If the case of the saucy tweeter makes it way through the courts, it will provide further clarification as to when employers may terminate for cause when an employee decides to take to social media to complain about their employer.
The saucy tweet may not rise to the same level as the social media posts in Campeau or Bowman. However, if Fastenal Canada’s policy regarding social media posts was breached by Mehaidi, a court may hold termination to be justified as he was in a supervisory position and he publicly disparaged his employer by saucily tweeting about its Christmas gift.