Reading a recent BBC article entitled I lost my job over a Facebook post – was that fair? I was reminded of two things.
- How misunderstood social media continues to be as it relates to the workplace; and
- That terminations and litigation takes a personal toll on those involved.
The case that is the subject of the article comes to us from the U.K. and although in the circumstances of that case, the termination was set aside, the fact is that there is a growing body of Canadian cases dealing with terminations for social media posting (whether on Twitter, Facebook, blogs or other platforms). I’ve spoken on this topic a few times over the years including as a Facilitator at the Law Society of Upper Canada’s Advanced Roundtable in Employment Law and at the Lancaster House, Labour Arbitration Conference. I also deal with it in my employment law class at the University of Toronto. It always fascinates me to hear the varying points of view on the topic, not the least of which is “what I do and say in my personal life is my own business”. To a point that’s true, of course, but only to a point.
It is clear that an employee’s off-duty conduct can be cause for dismissal where it adversely impacts on the workplace or prejudices the employer’s business interests or reputation. The first direct Facebook firing case in Canada is Lougheed Imports Ltd. (West Coast Mazda) 2010 CanLII 62482 (BC LRB) which was an unfair labour practice complaint under the British Columbia Labour Relations Code. The Board noted, that while employees have a right to express their opinions “about work related issues” those expressions may have consequences within the employment relationship.”
In Canada Post Corp. (Discharge for Facebook Postings Grievance)  C.L.A.D. No. 116 (A. Ponak) the Arbitrator observed:
There is ample case law that supports the principle that what employees write in their Facebook postings, blogs, and emails, if publicly disseminated and destructive of workplace relationships, can result in discipline…
The Arbitrator upheld the penalty of termination imposed by the employer. In doing so, the arbitrator commented:
The current case is unprecedented in the repeated mockery, the threatening language, the vile insults, and the debasement of an identifiable manager. Nor are the postings a momentary lapse, perhaps carried out in a short-lived fit of rage. They take place over more than a month on multiple days.
Arbitrator Laura Trachuk in Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA), a case in a unionized workplace involving a termination over allegedly inappropriate Facebook post, noted:
It is well-established that inappropriate Facebook postings can result in discipline or discharge, depending upon the severity of the postings. The nature and frequency of the comments must be carefully considered to determine how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company. In some cases, the issue is whether the comments were so damaging or have so poisoned the workplace that it would no longer be possible for the employee to work harmoniously and productively with the other employees or for the company.
A discharge was also upheld in Corner Brook Pulp and Paper Limited, 2013 CanLII 87573 (NL LA) for comments made on Facebook. The Union in this case did not deny that the comments were made and that some discipline was warranted. The Union argued that the discipline imposed by the employer (termination) was too severe in all of the circumstances. The Arbitrator disagreed.
The employer was found not to have proven just cause for termination of two employees and the terminations were overturned in Air Canada, 2016 CanLII 80470 (ON LA). In that case, the Union’s negotiation committee and Air Canada reached a ten-year tentative agreement and the agreement was put out for ratification by the membership which commenced on November 7, 2015 and closed on November 17, 2016. The collective agreement was ratified by a small margin.
During the ratification process, one employee published a bulletin entitled New Horizons which he distributed, on request, to colleagues. Two of the New Horizons bulletins included commentary on labour relations matters and a proposed tentative collective agreement negotiated between the Union and the Air Canada. The employee was terminated for publishing this bulletin.
The other employee posted an essay he had written to Facebook and contributed it to New Horizons. The essay included commentary on labour relations matters and a proposed tentative agreement negotiated between the Union and Air Canada. This employee was terminated for publishing the essay.
The employer argued that the employees violated a number of policies, including its Code of Conduct and Social Media Guide.
However, at the first day of hearing, the employer “conceded that it did not have cause to terminate either grievors’ employment and agreed to reinstate both grievors with full back pay and without loss of seniority. In addition, it agreed to expunge the discipline from the grievors’ files.” That should have ended the matter, but both the Union and employer asked the arbitrator to decide the issue of “freedom of expression”. Specifically, communication with respect to collective bargaining and labour relations matters.
The Supreme Court of Canada in Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII),discussed freedom of expression in a unionized workplace:
[L]abour speech engages the core values of freedom of expression, and is fundamental not only to the identity and self-worth of individual workers and the strength of their collective effort, but also to the functioning of a democratic society. Restrictions on any form of expression, and particularly expression of this gravity, should not be lightly countenanced.
Arbitrator Davie then observed:
Union members are permitted to discuss labour relations matters. That discussion may even be critical of the Employer. Freedom of expression is a fundamentally important right in the context of industrial relations, and arbitrators must be concerned that it is not improperly confined by rules or by the imposition of discipline
The Arbitrator found that the essays would not bring “serious discredit to Air Canada or to be a violation of its social media guidelines or of its Code of Conduct.”
Ultimately, the grievances were upheld as the employer did not have just cause to terminate the grievors’ employment.
These are just a sampling of the cases. There are many others.
Social media sites are sometimes used by employees to publicly air their frustrations about their employer and/or co-workers. Social media can also be used to disclose confidential or proprietary business information. Employees can engage in harassment or bullying of co-workers or customers through their social media activities in breach of statutory and other obligations. Reputations and lives can be changed in an instant. As such, employers should clearly communicate their expectations regarding proper social media behaviour and the consequences of failing to comply with these expectations, and remind employees that what they say can have a negative impact on their employment.