I recently did some work for a client that involved looking into recent Canadian legal cases dealing with employees that have been either fired or reprimanded for their conduct on social media platforms. I ended up using some of these cases as examples in an internal training program I developed for employees on “responsible digital engagement”. I thought I’d share a few of them with you today.
All five of these cases reinforce my firm belief that every employee of a modern organization should take the following five tips to heart:
- Read your existing policies related to values and ethics (especially if you don’t have any official social media engagement guidelines/policies in place).
- Be aware that employers can legally monitor your online behaviour on public channels 24/7. If it’s not your employer doing so, then some stranger likely is.
- Work under the assumption that all of your posts are public, even so-called “private” ones.
- If you wouldn’t be comfortable saying something in a packed room of people, don’t say it online.
- Use caution and good judgement. If you’re even slightly unsure as to whether or not something is kosher to post about, ask your HR rep or supervisor.
I should point out that my general advice to clients is to educate and empower their employees as opposed to restrict and reprimand. Training/orientation sessions on “responsible digital engagement” should be an opportunity to foster a discussion and get both management and employees on the same side. The reality of the modern web is that everything is on the record. This isn’t something your employer came up with, therefore work together on this proactively so as to avoid situations as described below.
Alberta v. Alberta Union of Provincial Employees of Alberta (R. Grievance)
- Issue: Derogatory remarks about employer posted on blog
- Verdict: Dismissal upheld
As a result of the serious illness and subsequent death of her father, the Grievor experienced feelings of helplessness and anger, and attended therapy provided through her workplace Employee Assistance Program. The EAP therapist recommended that the Grievor “vent” by writing down her feelings. Some months later, the Grievor decided to implement this recommendation by posting her feelings via personal blogs on the Internet, which were accessible by the public. While a large portion of the blogs contained personal writings unrelated to the Grievor’s workplace, some of the comments posted mocked supervisors and co-workers and attacked management. For example, the Grievor wrote: “Does anyone else out there live in a world like mine with imbeciles and idiot savants (no offence to them) running the ship … and is anyone else’s ship being sailed down the highway to hell?“ Although the Grievor used aliases when referring to co-workers, she disclosed that she lived in Edmonton and worked for a department of the Alberta government. The Grievor’s department handled sensitive information regarding members of the public and required the exercise of discretion, sound judgment and confidentiality in its day-to-day work. The employees in the Grievor’s office were easily able to identify the individuals described in her blogs, and many who read the blogs testified that they were hurt by the entries and would have difficulty working with the Grievor in the future. Accordingly, a majority of the arbitration panel upheld the Grievor’s termination on the basis of the blogs’ destructive impact on the employment relationship.
Canada Post Corp. v. Canadian Union of Postal Workers
- Issue: Derogatory remarks about employer posted on Facebook
- Verdict: Worker was fired
The postal service fired a postal clerk with 31 years of service after becoming aware of posts on her Facebook account, which contained a number of derogatory, mocking statements about her supervisors and the employer. The supervisors disparaged in the posts became extremely upset after learning about the posts and required significant time off work for emotional distress. The employer argued that the postings were grossly insubordinate, had the potential to damage its reputation and had greatly harmed the supervisors. The arbitrator upheld the clerk’s termination, ruling that she was unapologetic, her posts viciously and unjustifiably targeted a manager and were accessible by current and former co-workers as well as the general public. Arbitrator accepted that the grievor had a genuine belief that her Facebook page was private, but the speech in that case was extreme. He said that, even if she believed it was private, it was reckless to post that stuff to her friends. It’s OK to sit in a bar with a friend and vent a little, but if you put it online, even if you’re only posting to six friends and it’s password-protected, when there’s a reasonable expectation of harm to the employer that venting isn’t justified.
Chatham-Kent v. National Automobile, Aerospace, Transportation and General Workers Union of Canada
- Issue: Care-home employee blogged about residents
- Verdict: Employee was terminated from her job
The employee worked at a care home and established a blog, she claimed, to keep in contact with some former co-workers. The employee thought the blog was private to her small group; it was not. On the blog, the employee, amongst other things, posted pictures of residents. In addition to posting the photos of residents, the employee would add text to the photos, such as “What a treat. He has Parkinson’s and ‘freezes up’ so that he can’t do a thing for himself. The only part of his body that doesn’t freeze up is his damn thumb, that baby can really push a call light a million times a shift.” Upon reviewing the employee’s blog, which she maintained on her own time, i.e. off-duty, the employer terminated the employee. The employee grieved the termination and the termination was upheld. In resolving that termination was warranted, Arbitrator Williamson focused on the public nature of the blog, the fact that anyone could have access to the employee’s comments, and thus found that the conduct had the potential to harm the employer’s reputation.
Frangione v. Verdongen
- Issue: Plaintiff sought damages for personal injuries
- Verdict: Plaintiff ordered to disclose all Facebook posts (including those that were set as “private”)
Plaintiff sought damages for injuries from two accidents. A defendant sought access to plaintiff’s computer hard drive and the private portion of his Facebook page. Defendant contended that information on the hard drive and on plaintiff’s Facebook page was needed for analysis by defendant’s forensic expert of plaintiff’s daily computer usage as a factor in measuring plaintiff’s damages for loss of enjoyment of life and ability to work. Although he produced all pages from his Facebook profile that were available to the public, plaintiff refused to produce the private-access portion of his Facebook page or his computer hard drive on the ground that his private communications with third parties were privileged and protected by rights of privacy. The court ordered plaintiff to produce all material on his Facebook page.
International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd.
- Issue: Employee posted explicit video of his work related injury
- Verdict: Employee dismissed
ThyssenKrupp dismissed an employee from employment when a video posted on the internet showing him with his genitals exposed and his scrotum being stapled to a 4 x 4 wooden plank came to its attention. The employee was employed as an elevator mechanic by ThyssenKrupp. The employer had assigned the employee, together with several other employees, to work at a large office building new construction project on Wellington St. West in downtown Toronto. ThyssenKrupp was a subcontractor to PCL Construction, the general contractor at that project. It was apparent from the video the employee and several others in the video were employees of ThyssenKrupp who were working at a PCL Construction site. The dismissed employee wore his ThyssenKrupp shirt in the video. The employee was dismissed for violating the company’s Workplace Harassment policy; his genitals having been exposed for an extended period of time.
If you are interested in obtaining some more recent legal examples of this sort (including ones specific to the public sector) please feel free to contact me.
Great examples! Thank you. It amazes how many people think the First Amendment means their employer can not fire them for what they say online. One of my favorite sayings is “You are free to choose, but you are NOT free from the consequences of that choice.”