Online posts disparaging customer not enough for dismissal in B.C. (Legal View)

Worker had good record, was remorseful
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 10/30/2015

A British Columbia worker’s angry online posts about his employer’s biggest customer were not sufficient cause for dismissal, an arbitrator has ruled.


Maxam Bulk Services is a manufacturer and distributor of explosives to clients in the mining industry. Based in Salt Lake City in the United States, the company’s Canadian branch is based in British Columbia. 


Ninety per cent of Maxam’s business in Canada was for one customer — B.C.-based Teck Coal —making it Maxam’s largest customer globally.


Sheldon LeBrun was a bulk truck driver and spare lead hand for Maxam at Teck’s Greenhills Mine. His truck driver duties involved loading trucks with chemicals and transporting them to mines, while his spare lead hand duties involved recording any safety concerns or deficiencies at the mine. He made such reports on a daily basis.


In 2014, LeBrun recorded that an electric gate at the site silo was malfunctioning. The gates were meant to keep wandering animals away from the silo and the electric connection to one of them had been severed during a heavy snowfall. 


In 2010, several sheep had died after consuming chemicals at the site, leading to the installation of the gates. LeBrun kept reporting this issue for several months, but nothing was done.


On July 15, 2014, several sheep were able to get into the silo enclosure through the broken gate and consumed chemicals, which killed them. The next day, LeBrun was golfing when he received a phone call from his supervisor telling him the news. 


LeBrun mistakenly got the impression Teck was blaming his company, Maxam, for the sheep deaths, when in fact it was Teck who had failed to repair the gate.


Top customer upset with online remarks

On July 18, Teck’s general manager for the Greenhills mine called Maxam’s vice-president in B.C. to tell him about “uncomplimentary” Facebook comments written by LeBrun. The general manager was upset. 


Maxam’s vice-president accessed Facebook and was able to read the comments, though he wasn’t a “friend” with LeBrun on the site.


The posts began with LeBrun commenting on someone else’s Facebook wall where a news article about the sheep deaths had been posted on July 16. The comment said, ‘Teck never takes responsibility over anything.” 


More comments were posted back and forth and LeBrun also posted that Teck wasn’t serious about anything.


The next day, LeBrun had posted on his own Facebook page the following: “F--- y-- Teck Coal, thanks for once again not taking full responsibility of what goes on on the mine site and blaming the contractors like you are so famous for doing. 


“F--- me I need a life change, like getting out of this goddamn valley where everything wouldn’t evolve around Teck f----ers.” 


Further comments followed, including LeBrun saying they should change his company’s name to “Maxam Bulk Sheep Killers” and other comments. 


As the discussion continued under LeBrun’s comment, his friends — including one who had previously worked at Maxam — talked him down a bit.


LeBrun ultimately posted that “Maxam is not that bad, I love the work I do, I just hate 95 per cent of everything else that comes with.”


Teck’s general manager was upset about what he perceived to be disparaging remarks about Teck, particularly since the company was still investigating what had happened.


Apology forthcoming

Maxam’s operations manager spoke with LeBrun and told him everyone was angry about his Facebook comments and they didn’t know what to do about it. LeBrun said he didn’t realize his account was viewable by the public and he was remorseful. 


He asked if it would help to make a formal apology to Teck and the operations manager said he would ask the appropriate people. 


LeBrun also told him he had taken the posts down after he received the call. 


He admitted it was too late by then, but he wanted “to get the posts down.” He also acknowledged he had “put the company in jeopardy” by antagonizing its main customer.


LeBrun said he had been frustrated and angry over Teck’s failure to fix the broken gate, resulting in the dead sheep, and he wrote it out online as a way of venting his anger. 


He said he didn’t think it would end up the way it did and later changed his profile setting to private and deleted the posts. 

He also acknowledged he was in “big trouble.”


LeBrun accepted the operations manager’s advice and took four days of vacation time. The operations manager inquired about a formal apology, but Teck didn’t respond. 


On July 24, Maxam suspended LeBrun indefinitely while management discussed his fate.


Maxam management was surprised by the comments, as LeBrun hadn’t done anything like it before, but the posts were made over a period of time and couldn’t be considered a spur-of-the-moment occurrence. 


Maxam felt LeBrun had damaged its relationship with its most important customer, damaged its own reputation and slandered his supervisor. The company believed it couldn’t trust him anymore and terminated his employment on July 31, 2014.


Mitigating factors

The arbitrator noted several factors mitigating the seriousness of LeBrun’s misconduct. One was that he was known to be a good employee and not prone to the type of angry ranting he did on Facebook over the sheep incident — Maxam management was surprised when they found out. 


Over the course of his four-and-a-half years of employment with Maxam, this was an isolated incident.  Maxam argued that because the outburst came out of nowhere, it was difficult to be confident it wouldn’t happen again, but the arbitrator disagreed, saying this made it likely it would not happen again.


The arbitrator found LeBrun’s misconduct was serious and had no provocation, which was a reason for concern. 

However, LeBrun demonstrated significant remorse afterwards.


Though he didn’t immediately remove the posts and had made them over a period of a few hours, LeBrun removed them once he realized their impact. He offered to apologize to Teck and said it wouldn’t happen again. 


This made it likely he could learn from the mistake of his angry outburst, said the arbitrator.


“Given his apologies, his remorse, the fact he understood what all the concern was about, and that he recognized the danger that his diatribe had visited on his own company and its employees, I conclude (LeBrun) has presented as a good candidate for the benefits of progressive discipline,” the arbitrator said.


The arbitrator also noted that after the initial Facebook comments, LeBrun added some comments discussing the positives of working for Maxam, so they weren’t all negative.


The employment relationship was still viable, said the arbitrator, who ordered Maxam to reinstate LeBrun without loss of seniority. 

The time period since his dismissal would be treated as a disciplinary suspension, so there would be no compensation for lost pay.


For more information see:

• Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, 2015 CarswellBC 2277 (B.C. Arb.).


Jeffrey R. Smith is editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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