In Ontario Secondary School Teachers’ Federation v. Simcoe Country District School Board, arbitrator James Hayes ordered the teacher, A.B., to apologize to the principal, C.D., and reduced the punishment to a three-day suspension with appropriate compensation.
The matter dates back to Oct. 18, 2011, when A.B., who’s gay, posted on Facebook: “We’ve failed yet again. I’m ashamed that this happens in Ontario schools. It’s difficult enough being an openly gay high school teacher in a small community. I can’t imagine being an LGBQT student. I strive every day not be part of the problem. From this day forward I will be part of the solution. To the homophobic Principal who told me that she didn’t think a gay teacher should be part of the GSA [gay straight alliance] — we need real leaders, not sheep.”
The school board took issue with the post for, among other things, reputational damage and the fact that, according to Hayes, “C.D. did not do what A.B. suggested had been done in his posting.” The union, in turn, admitted the posting was intemperate but suggested A.B. honestly believed “he had been the object of discrimination.” In addition, it noted Hayes was remorseful and had a clear record with more than 10 years of service.
In the end, Hayes found the school board had every right to impose discipline.
“The board had every right to be deeply concerned about the content of such a posting as did the principal who had every reason to be personally upset and angry. It would have taken no effort to identify C.D.; A.B.’s school was identified on his Facebook wall. I do not believe that the board’s concern about ‘reputational damage’ was in any way misplaced or exaggerated. The issues of particular concern to A.B. are also of great import to any school board. A.B. had no right to attack his principal, and implicitly his employer, in such a way.”
But he also considered the mitigating factors, including A.B.’s regret as well as his discipline-free record of service in reducing the discipline to a letter of apology and three-day suspension.
For lawyers like Rubin Thomlinson LLP associate Parisa Nikfarjam, the case is a reminder that social media postings “can be grounds for discipline or dismissal,” an area where the law is pretty clear. Where it’s not so clear, however, is on the severity of punishment.
Still, she notes the Simcoe case shows the need to take a contextual approach to the issue that considers the various factors at play, including an employee’s length of service and discipline history. While she can’t predict what might happen with any grievance in the high-profile firefighter case, she says the Simcoe matter highlights the fact that the law will treat social media issues in employment matters the same as other types of misconduct.