Employee displayed 'gross misconduct' regarding MPP: Employer
After a tweet was posted by a constituency assistant directed at the member of provincial parliament (MPP) for London West in Ontario, the worker was dismissed for “gross misconduct.”
Kathy Clee was discharged in April 2017 from the office of Peggy Sattler, the NDP representative for the riding.
On March 25, 2017, a tweet by Clee was sent from an Ontario Federation of Labour (OFL) women’s conference that Clee attended. It read: “To my MPP @PeggySattlerNDP from us at #OFLsistertosister” and displayed a hand-written sign that read: “I want Decent Work because….”
When she was terminated, the letter accused Clee of a “thinly veiled denouncement of me as your employer.”
The Canadian Office and Professional Employees Union, Local 343, grieved the decision and argued the message was innocuous and did not constitute gross misconduct, which was a reason an employee could be fired and not paid during the arbitration process. The union did not argue the merits of the termination, but only the ruling that Clee engaged in gross misconduct.
At the time of the tweet, Clee had three other disciplinary actions on her record (a warning letter from October 2016, a one-day suspension in January 2017, and a written warning from February 2017). A meeting was scheduled to discuss the latest incident.
Clee had worked in the office since shortly after the 2014 Ontario election, after working on Sattler’s campaign. At the conference, which took place from March 24 to 26 in Port Elgin, Ont., Clee went as a union delegate.
Carrol Anne Sceviour, the OFL’s human rights and women’s director, testified attendees were encouraged to send out messages via social media about working conditions — with the words: “I want decent work because…” — to their local MPPs. As she lived in the London West riding, Sattler was Clee’s provincial representative.
When she first saw the tweet, Sattler liked it via the Twitter check box. But later, she reflected that the message may have been directed at Sattler as an employer, especially considering the impending disciplinary meetings. Sattler removed the like the next day.
Clee was suspended on March 27.
On April 10, during a meeting, Clee said she felt the tweet was blown out of proportion and she thought it was a “railroad job” the way the employer was treating her. However, Sattler characterized the message as “like a punch in the gut; I was very troubled by that tweet.”
Clee didn’t acknowledge that the tweet was inappropriate but said that she may have raised her voice during the meeting: “I’m a loud person.”
A termination letter dated April 18 said: “Your failure to reconsider the tweet and remove it after the March 30, 2017, meeting is a defiant reaffirmation of your attitude towards your employment with caucus.
It is beyond us why you chose to leave the tweet posted. Again, this decision shows poor judgment and a lack of investment on your part in fostering and honouring your continued employment relationship with me.”
Arbitrator Lorne Slotnick ruled the tweet did not constitute gross misconduct, but he didn’t rule on the termination.
“There is no doubt that Clee could have handled the situation differently. She could have shown more understanding of the employer’s interpretation of her tweet, and she could have removed the tweet a lot earlier than she did. Again, these considerations may weigh in the ultimate assessment of whether the termination was justified or whether reinstatement is a viable option in this case, but they do not lead to a conclusion that Clee has engaged in gross misconduct,” said Slotnick.
Clee’s reaction to the meeting and her subsequent outburst did not meet the definition of gross misconduct, according to the arbitrator.
“While some of the comments were not diplomatic, diplomacy is not a requirement of union-management meetings, nor can it be the basis of an allegation of gross misconduct in these circumstances. The employer’s argument that Clee did nothing to repair the employment relationship, and in fact sabotaged it with her post-tweet conduct, may be relevant to the ultimate disposition of the case, but is not a significant factor in an assessment of gross misconduct,” said Slotnick.
Reference: Ontario New Democratic Party Caucus and Canadian Office and Professional Employees Union, Local 343. Lorne Slotnick — arbitrator. Meg Atkinson for the employer. Glenn Wheeler for the employee. Oct. 18, 2017.
