Stelco ordered to reinstate worker who was fired over Facebook post that criticized a union election

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Stelco has been ordered to reinstate a worker it fired after an arbitrator ruled the company acted in bad faith and had no justification for discipline, let alone termination, in the wake of a Facebook post that protested a union election.

Arbitrator Christopher J. Albertyn also awarded punitive damages, but left it to the two sides to calculate the precise amount.

The award includes payment for his full loss of earnings, benefits, pension entitlement, and profit sharing, without any loss of service or seniority.

Background

ML began working for Stelco in 2006 and was trained in various roles at the company. He was active in the United Steelworkers (USW) union, which represents about 1,150 hourly paid workers at Stelco’s Lake Erie Works in Ontario.

ML grew up in a family with a strong union background; his father had been a long-time Stelco employee and the president of a local USW chapter. Over the years, ML held various union positions, including chief health and safety representative and the local’s chief steward. According to the senior labour relations representative for Stelco, ML was assertive and, at times, loud in union meetings but was never deemed rude or inappropriate.

In March 2021, ML narrowly lost an election for the local president position. He protested the results via a Facebook post, which led to harassment complaints from the local financial secretary, and three other union executives. (Full Facebook post reproduced at the bottom of this article.) These complaints eventually led to his termination.

The investigation by the senior labour relations rep for Stelco initially found the harassment allegations to be internal union matters rather than company issues. However, her superiors overruled her, leading to ML’s termination in September 2021.

The termination letter cited his past disciplinary records, which included suspensions in 2019 and 2020 for insubordination and verbal abuse, as contributing factors.

“It has recently come to our attention that you have been involved in several violations of the Company Rules of Conduct, including harassment of co-workers,” the letter stated. “These violations constitute a culminating incident, calling for a response that takes account [of] your prior disciplinary record.”

During the hearing, the union argued that some of these disciplinary actions were related to his role in the Joint Occupational Health & Safety Committee but admitted that these were not challenged at the time and thus are part of his record.

Things got ugly post termination, with a surge of social media posts attacking the decision to fire ML. The tone of these posts escalated, with some calling those in the union responsible “rats” and suggesting they should be “exterminated.”

These posts led to complaints being filed with the Ontario Provincial Police (OPP), in which ML was incorrectly identified as a suspect. The OPP ultimately decided not to pursue criminal harassment charges. Both the Union and Stelco’s vice-president of human resources agreed that Stelco lent credibility to the criminal complaint against ML, even though he was not involved in these posts.

At the request of concerned union members, Stelco paid for security improvements to their residences.

The employer’s position

Stelco argued there was just and reasonable cause for disciplining ML due to his Facebook post, which it said constituted workplace harassment. The employer pointed to legal precedents that allow for the disciplining of employees for misconduct that occurs outside of the workplace but affects the work environment.

It argued that a broad interpretation is given to what constitutes “harassment in the workplace” and that the impact of his post was harmful enough to warrant action.

The employer also asserted that ML had prior disciplinary suspensions for similar misconduct, which contributed to the decision for his termination. It argued against reinstatement, highlighting that he showed no remorse, refused to take down the offensive post, and other employees did not wish to work with him.

Furthermore, the employer rejected any claims that the investigation, which led to ML’s discipline, was flawed enough to invalidate the action taken. It maintains that the time taken for the investigation was reasonable and did not disadvantage ML.

The employer also contended that there was no basis for claiming bad faith, reputational harm, or punitive damages. If damages are payable, Stelco took the position that both the union and the employer should be jointly liable.

The union’s position

The union submitted a multi-point defense on behalf of ML. Key points included:

• Validity of the Facebook post: The union argued that the content of his Facebook post was true and not misleading. His comments related to the conduct of union office-bearers during an election.
• Workplace harassment: The union contended that ML did not commit workplace harassment. It states that harassment doesn’t depend on the intention of the accused or the emotional impact on the victim. If the conduct is reasonable, then it can’t be labeled as harassment.
• Off-duty conduct: The union maintained that ML’s Facebook post was off-duty conduct and argued that the company had no business getting involved unless there’s a “real, causal connection or nexus” between the misconduct and the employment relationship.
• Failure to investigate counter-complaint: The union criticized the company for not investigating ML’s counter-complaint.
• Delay in discipline: The union argued that the discipline is void due to delay, citing several legal precedents.
• Training and mitigating factors: It is pointed out that ML underwent harassment training and that the company’s failure to provide such training should be considered a mitigating factor.
• Remedy and liability: The union argued for reinstatement, citing no evidence of irreparable harm between him and his coworkers. It noted that no one in the union suggested his termination.
• Punitive damages: The union submitted that this is a case where punitive damages for breach of good faith should be awarded due to the company’s high-handed conduct.
• Union’s limited role: The union clarified that it had no authority to require Stelco to take any action against ML and that any disciplinary action was the company’s decision alone.

The ruling

The arbitrator noted that ML was “blindsided” by his termination. He had no sense of the barrage of efforts by union leadership to have him penalized.

This case was about legitimate disagreements in the workplace involving internal union affairs and the conduct of a union election, the arbitrator said. While ML wasn’t always measured in his approach, he was simply challenging the way the union and its officials conducted the election.

“Fundamentally, the Grievor’s behavior was a reaction to a matter that was internal to the union. There was therefore no legitimate employer interest to be protected in the disputes that arose from (his) protest and from his Facebook post,” the arbitrator said.

Though the ruling was careful to clarify that posting on social media can indeed have an impact in the workplace. If it was workplace harassment, then the employer would have a legitimate interest. But, in this case, it fell short of that bar.

The Facebook post from ML only addressed his view on how the election was handled and how some supporters of his opponent acted — “he was entitled to those views,” the arbitrator said. “They had no impact on the employer or its operations.”

It also noted that the passage of time — four-and-a-half months — was “simply too long” to conclude the events really were the bona fide reason for discharge. There was no basis for any discipline, let alone discharge, the arbitrator said.

It rejected Stelco’s request to compensate ML in lieu of reinstating him. Since there was no cause for discipline, there was no justification to deviate from the usual and proper remedy where there is no just cause.

ML was reinstated with full compensation, including loss of earnings, benefits, pension entitlement, profit sharing and without loss of service or seniority.

Bad faith

The union argued ML’s termination was in bad faith, and the arbitrator agreed.

“The company knew on May 5, 2021 that there was no just cause for any discipline, yet changed its mind, without any justification, to come to the opposite conclusion,” it said.

The union sought both punitive and bad faith damages. Punitive damages are intended “for malicious, oppressive and high-handed conduct that offends a sense of decency,” as cited in Whiten v. Pilot Insurance Co., 2002.

These damages serve the objectives of retribution, deterrence, and denunciation, aiming to punish the defendant. Such damages must be proportionate to various factors, including the blameworthy conduct of the defendant and the vulnerability of the claimant.

In the current case, no claims have been made for damages related to mental distress. ML and his family did experience stress and uncertainty following his termination. Although he eventually found alternative employment, it was located an hour away from his residence. While these circumstances are challenging, they do not qualify as mental distress.

The key issue is whether Stelco’s conduct in terminating him was so egregious as to merit punitive damages. The termination was conducted in bad faith; the company was aware that it could not be justified yet proceeded regardless. This behavior prompts the consideration of punitive damages, the arbitrator said.

Both parties have agreed to negotiate the amount of punitive damages. If an agreement cannot be reached, the issue will be revisited, the arbitrator said, noting he remains available to resolve any disputes related to this matter.

As an aside, the arbitrator commended the union for asserting ML’s rights to fair and effective representation in this arbitration despite the efforts by some of leadership to penalize him.

For more information, see Stelco Inc. v United Steelworkers, Local 8782, 2023 CanLII 91510 (ON LA)

The Facebook post

Here is the text of the post ML put on Facebook: