01 Mar Workplace Discipline and Discharge for Social Media: #JustDismissal
Online actions have real world consequences. As our lives move increasingly onto the web, it is important that we remember that the same rules of respect and courtesy we were taught in kindergarten still apply.
If you don’t have anything nice to tweet, don’t tweet anything at all. Especially when it comes to your place of employment.
Workplace Discipline and Discharge for Social Media
Information gathered from your social media activity can be used to justify workplace discipline and even discharge. It is important that workers understand how social media – whether it’s blogs, Facebook posts or tweets – fit into existing employment, privacy and confidentiality frameworks. In short: anything you say on social media can be held against you if it reflects negatively on your employer or violates workplace confidentiality or harassment policies. Away from the work place, social media use can also impact personal injury lawsuits.
The case-law origins for just cause termination of employees for off-duty conduct – fundamental to emerging social media defamation cases – is the 1967 case of Millhaven Fibres Ltd v. Atomic Workers Int’l Union. This case determined that an employee’s behaviour outside the workplace may be grounds for termination if, among other factors, their conduct harms the company’s reputation or product, or makes other employees reluctant to work with them.
When considering if termination is appropriate for online behaviour, arbitrators will consider, among other considerations, the frequency of disparaging posts, if they were violent or threatening in nature, if confidential information was disclosed, the damage to business and reputation of the workplace, and if the accused demonstrated remorse and cooperation to remedy their misconduct.
Cases Regarding Social Media & Disciplinary Outcomes
There have been dozens of cases in recent years where employees have been reprimanded or even fired for cause for things they posted online. Below are two cases that illustrate the disciplinary outcomes facing employees whose online behaviour is deemed incompatible with workplace values and policies.
Lougheed Imports v. Local 1518 (2010)
Two employees of West Coast Mazda in B.C. posted multiple disparaging remarks about their employer and coworkers on Facebook. The two employees were Facebook friends with their manager but nonetheless posted threatening remarks about their employer and told people not to use the business. After the manager confronted the employees multiple times about their behavior on and offline the two were fired for cause. When the two former employees filed a grievance, the Labour Board found that they did not have a reasonable expectation of privacy for their public Facebook posts and that their continued confrontational behaviour after multiple warnings made for just cause for dismissal.
After a patient at Credit Valley Hospital sadly jumped to his death from a parking garage, Mr. Brathwaite, a hospital employee, was tasked with aiding in the clean-up of the scene. As he was tending the site of the accident, Mr. Brathwaite took pictures with his cell phone and posted them on Facebook. He was fired for cause shortly thereafter. The employer’s position was that Mr. Brathwaite had violated the hospital’s Code of Conduct and the confidentiality of patient, employee and corporate information. Upon arbitration, a panel upheld the hospital’s decision citing Mr. Brathwaite’s culpable misconduct as well as the fact that he was neither remorseful nor accepting of responsibility for his misbehaviour.
Preventing Social Media Defamation
In order to ensure that employee’s online behaviour does not negatively impact company interests, it is important that employers take preventative measures to educate employees about acceptable use of social media as it relates to the work place. Although many workplace policies regarding confidentiality, privacy and harassment extend to social media and other online activities, many employees are unaware of the online scope of these policies.
In order to protect their business from online employee misconduct, employers should:
- Ensure that employees are aware of what constitutes “appropriate use” of social media as it relates to the workplace.
- Have policies that make clear how online behaviour can affect employment.
Determining if an employee’s online behaviour is grounds for dismissal is a nuanced task. Be sure to consult with an employment lawyer to determine what disciplinary action online comments and posts warrant.
Experienced Employment Law Team
KCY at LAW is an experienced employment law team that can help you develop fair and enforceable workplace policies regarding appropriate online behaviour and help you to properly address issues should they arise. Call us today on (905) 639-0999 or contact us online to book your consultation.