Ontario worker disapproved of training, had previous caution about public face of college employees
An Ontario arbitrator has upheld the firing of a college instructor who leaked diversity training materials to a media website.
“For unionized employers, it is always important to be measured and careful about decision-making regarding discipline,” says Haadi Malik, a labour and employment lawyer at Stringer LLP in Toronto.
“In other circumstances where an employee makes public statements that may cause reputational harm to the employer, there may be mitigating factors such as the decision being rash or the employee expressing genuine remorse, so discipline short of termination may be more appropriate – [but these] factors were absent in this case.”
Memo about social media activity
The worker was hired in 2008 as a recreation/fitness co-ordinator in student affairs at Sheridan College in Brampton, Ont.
In July 2020, the college discovered several tweets by the worker featuring misinformation, negative comments, and far-right views from sources in Canada and the U.S. The worker’s Twitter profile did not say that he was a Sheridan employee, but he identified himself as an educator at a college and mentioned Sheridan bus routes and Brampton – which allowed someone to connect him to Sheridan and bring the tweets to its attention.
The worker received a non-disciplinary “expectations memo” reminding him that he acted as the public face of the college and his conduct could impact its reputation. The memo stated that his conduct inside and outside the college, including social media activity, must be consistent with the code for professionalism and civility.
In August, Sheridan rolled out equity, diversity, and inclusion (EDI) training that acknowledged systemic racism in their community. The worker completed the training, but he texted his manager with concerns. He felt that some of the content wasn’t accurate or in accordance with the Ontario Human Rights Code. He didn’t expect the manager would be able to do anything and he didn’t contact the program co-ordinator or the union.
In February 2021, the student affairs department held an EDI training initiative in which staff were divided into a white caucus and a people-of-colour caucus. The worker didn’t like it and felt that a book used in the training encouraged racism and discrimination.
With proper policies, employers can require employees to comply with acceptable online activity, according to an employment lawyer.
Contacted media
Again, the worker did not raise the issue with management or the union. Instead, he contacted Rebel News (RN), a Canadian right-wing political and social commentary media website and spoke with a reporter.
The worker sent five images of slides from the EDI training and asked to be identified as “former faculty,” because he had “mouths to feed.” In a telephone conversation with the reporter, the worker discussed the recent creation of a director of equity and inclusion position.
Later that month, Sheridan learned about an RN video online with the title “Why Whiteness? Leaked college diversity training claims white people ‘dominant’ over other races.” The article stated that a former Sheridan staff member had provided documents from its diversity training and featured slides and quotes.
Within one month, the video had more than 13,000 views and more than 300 mostly negative comments.
The negative reaction caused the director of diversity and inclusion to worry about the safety of her family. She was also concerned that others at Sheridan might share the worker’s views and the video could escalate their behaviour.
An employee’s failure to provide medical information while on medical leave breached his duty of fidelity, an Ontario court ruled.
Fact-finding meetings
The college was able to determine that the worker leaked the materials, as his name appeared in a screenshot of a slide.
At a videoconference meeting on March 5, the worker was advised of the college’s concerns and he was being placed on non-disciplinary leave with pay pending review of the matter.
Ten days later, Sheridan held a fact-finding meeting in which the worker confirmed that he had shared the training materials with RN. He said that he hoped that the college would be pressured into stopping the training.
The worker added that he had no confidence in using official channels to address his concerns. He also said he had no intention of attacking the director of diversity and inclusion and had not provided RN with any information about her.
Worker found training offensive
At another investigation meeting, the worker said that his parents had fled Poland when it became a communist country after World War II, so it was “extremely offensive” to be labelled as an imperialist or colonialist.
The investigation concluded that the worker knew what he did was wrong, he associated the training with the new director’s hiring, and it was reasonable to conclude that he had targeted the director.
On April 20, Sheridan terminated the worker’s employment for “sabotage and gross misconduct.”
The union argued that termination was excessive, saying that the worker had the right to criticize the college because it was a public institution and, since the college didn’t change the training program, the worker’s actions had no impact.
The union also argued that Sheridan’s investigation was flawed because it didn’t tell the worker that he allegedly breached the discrimination and harassment policy or used any of the resolution mechanisms in the policy. The college also didn’t provide a final investigation report, said the union.
Employees have an obligation to always be honest with their employer, says an employment lawyer.
It’s a good idea to finalize a formal investigation report, but Sheridan mitigated that by clearly outlining the reasons for termination in the termination letter, says Malik.
“It’s not always the case where the termination letter has sufficient reasons – formalizing your investigation report with your conclusions to support a case for discipline is always a good idea,” he says.
Duty of fidelity
The arbitrator found that the worker owed a duty of fidelity and loyalty to Sheridan as a fundamental element of his employment relationship. The worker also knew that the college served a diverse population and EDI was part of its strategic plan to address racism and inequity.
The arbitrator also noted that the worker received an expectations memo about his use of social media to express himself in ways that could damage the college’s public image, so he should have been aware of actions that could negatively impact Sheridan’s reputation and the code of professionalism and civility.
However, the worker surreptitiously made the training materials public with the aim of creating a backlash that would stop the training. This negatively affected the college as an institution as well as the director of diversity and inclusion, said the arbitrator.
As for Sheridan’s investigation, the arbitrator found that the investigation and resolution mechanisms in the harassment and discrimination policy didn’t fully apply. No one filed a complaint, the investigation meetings were not disciplinary, and their purpose was to determine if any policy had been breached, said the arbitrator.
“A key thing the employer did right was putting the [worker] on a non-disciplinary paid leave while it conducted its investigation, rather than taking the option of putting [him] on layoff,” says Malik. “The employer’s instinct was correct that such an action, if viewed even as motivated in part because of the misconduct, may amount to an unlawful reprisal.”
Cutting corners or prejudging in a workplace investigation can expose an employer to liability, says an employment lawyer.
Potential harm
The arbitrator determined that the worker created “a circumstance for potential harm” to Sheridan’s reputation and also pointed RN towards the director of diversity and inclusion. This was a deliberate and reckless breach of his duty of fidelity and loyalty to the college, the arbitrator said.
“The arbitrator recognized that the [worker’s] actions in leaking the EDI training materials to Rebel News were not only designed to try and humiliate the employer, but were also deeply reckless considering the expectations memo he had been provided earlier regarding his tweets,” says Malik. “While the expectations memo was not disciplinary in nature, it represented a clear warning that the employer valued its public reputation and that he had to conduct himself in a manner that would not tarnish it, which he failed to do.”
The arbitrator found that the worker knew what he was doing was wrong and it could lead to him being fired, as he told RN that he only wanted to be identified as a former instructor.
The union argued that the worker had no opportunity to apologize, but the arbitrator found that there were multiple meetings where the worker could have expressed remorse. There was no evidence that the worker regretted his actions, the arbitrator said in upholding the termination.
“This was not a spur-of-the-moment action – it was something considered by the [worker] over some time,” says Malik. “The [worker] also failed to apologize or show remorse for his actions when the investigation was occurring, and these actions were found to have broken the trust central to any employment relationship.”
