Termination for Offensive Remarks - From 9/11 to Amanda Todd
The most recent example of an employee who exercised questionable judgment (to say the least) online is the individual who posted crude and offensive comments about the death of Amanda Todd, the teenager who recently committed suicide after suffering years of bullying.
Although the online comments were not made in his capacity as an employee, it is reported that the posting resulted in a complaint to his employer, which fired him.
This reminded me of another case, which dealt with a crane operator who made offensive remarks about the 9/11 attacks. On September 11, 2011, after hearing about the terrorist attacks on the World Trade Center, this employee said to a group of people at his worksite that "The Americans got what they deserved". There were some dispute over whether he also said that he "wished they had taken more of them out". The listeners were employed by the company's customer, which was a US-owned business.
When confronted by his employer about it, the employee said that he had spoken from his heart, and was not sorry for what he had said. He hated Americans because what they had done to his original country of Kosovo. He shrugged when asked how he could be trusted to work on facilities owned by Americans. He was terminated.
His Union grieved the termination, and the OLRB overturned it, reinstating the employee. It reasoned as follows:
40. Mr. Vlahovic expressed sentiments that were harsh, discriminatory and insensitive, made at a time when people were reeling from the enormity of the events. But I expressly reject the employer’s assertion that I take into account the heightened tension and insecurity created by the events of September 11, 2001 and measure the employer’s conduct against that standard. In my view, provisions that provide just cause protection from termination are most acutely engaged in difficult circumstances, requiring diligence to ensure that a measure of proportionality is not lost.
41. I have no doubt that Mr. Vlahovic created a public relations furor in terms of the employer’s relationship with ADF/DCM. But the way to resolve that problem was not to terminate Mr. Vlahovic. The employer would have been justified in providing a written warning of discipline, and the customer could have been so advised. The applicant might also have been prepared to entertain the suggestion that Mr. Vlahovic be moved to another job site. All these would have been a proportionate response to what happened. The termination was disproportionate. [Emphasis added]
One can't be sure whether this employee will want to continue the publicity of his questionable judgment by bringing suit against his former employer. If he does, the same "freedom of speech" arguments will raise their head again.