I'll avoid the legality of the suit, but I think the smiley face is being spun a bit by the article.

Jobs wasn't sending the smiley face as some sort of grave dancing gesture, he was sending it as a "here, I took care of this problem for you" gesture to the team member that more than likely brought the issue to his attention. HR had a problem with something Google's HR did, so to cross borders they needed the boss to make the comment.

It's still sort of callous, but I don't think the author's framing this the right way.