Canada: #Wrongfuldismissal: Social Media In The Spotlight

Last Updated: December 1 2014
Article by Alison Strachan

We recently reported on a decision that we believe is the first Twitter disciplinary decision in a grievance arbitration in our blog Putting out a fire: Inappropriate tweets result in unpaid suspension for firefighter. We now have what appears to be the first wrongful dismissal dealing with a termination for Twitter and Facebook comments. As in the grievance arbitration, there is an important takeaway for employers in the employee's successful wrongful dismissal claim. Here's the key point:

Thus, even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff's termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff's termination because ITU did not give the plaintiff an 'express and clear' warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her. I should also say in this regard, that counsel for ITU conceded that ITU should not be able to rely upon the proof of the truth of the content of Mr. Beeche's letter in support of its position on cumulative cause, as he was not called to testify as a witness at the trial. In fact, the plaintiff's alleged conduct complained about in the letter was not even brought to her attention until after her termination. [emphasis added]

Kim v. International Triathlon Union, 2014 BCSC 2151

What happened?

The plaintiff, a Senior Manager of Press Communications, was terminated on November 20, 2012 and claimed in her statement of claim that her termination was sudden and "without advance warning". At the time of termination, the plaintiff was 34 years old and earning a salary of approximately $80,000 per year. She had been employed with the employer for two different periods: the first period was less than two years when she quit and took another job, the second, three years later, was also just short of two years in length. The plaintiff argued that reasonable notice should be assessed based on the combination of these two periods of employment.

The employer's defence was that the plaintiff's conduct in the months leading to the termination of her employment was unprofessional and insubordinate and that she had "irreparably harmed the trust inherent in the employment relationship through her unprofessional and insubordinate communications that were far-reaching and accessible to those throughout the triathlon sport community". It was the employer's view that the plaintiff was its "voice" and the "severity of her communications" was heightened as a result.

What did she say on social media?

The plaintiff had Facebook, Twitter accounts and a blog. Most of the ITU employees were her Facebook friends. One of her Twitter accounts (PK24/7) was a personal account and the other (Paula Kim ITU) for ITU matters.

  • October 23, 2012 Facebook posting:

    • 2012 ITU season ... DONE. now leave me alone until 2013!!
    • Undated Twitter and October 22 and November 4 Twitter posts:

      • surprisingly fun congress after-party last night. probly [sic] only time I'll see so many Eboard members hungover & lamenting those tequila shots
      • I wonder if other IF congresses have as much propaganda as ours...
      • Hey ITU, remember this next time I fly off the deep end...@Relationship 102: If I didn't care, I wouldn't get mad

The plaintiff said her Facebook message was written in a facetious joking manner reflecting her sense of humour and that she was trying to be funny. She said that the ITU employees were familiar with her humourous style. She said this message was never discussed with her by anyone at work.

The plaintiff said the Tweets were meant to say that she had a fun time with staff and that it was a reflection on an atmosphere and environment in which the ITU and federations interacted. Again, she said she received no comments from anyone about this tweet and no indication that it was inappropriate. Her use of the word "propaganda" meant "marketing or messaging" using her "ironic sense of humour". Again, she said she received no comments about this tweet. As for the third tweet, she claimed this was her way of explaining why she was so emotional. She had no ill intention with this tweet and did not hear from anyone at work about it. There was no indication that this tweet was frowned upon.

On October 5, 2012, the plaintiff wrote a blog entry called "taking shit" that was generally about her mother who she described as utterly abusive toward her and how she was haunted by that abuse, had recovered somewhat "but now thanks to my current boss, it is back in full force. and as my former colleague used to say, the spirit is broken". She said that a conversation she had with her "boss" was disappointing and reminiscent of disagreements she had with her own mother. The plaintiff testified that the people who read her blog were close friends and that no one at the workplace asked her about or talked to her about the blog post except one employee who talked to her out of a personal concern.

On November 20, 2012 the plaintiff was terminated. At the termination meeting she was told that her communication style was not in line with ITU.

What did the court say?

The Kim v. International Triathlon Union decision is a long one at sixty-six pages and 230 paragraphs. Our summary of the decision merely touches on the surface of the personalities and other dynamics at play between the parties. We recommend that you read the full decision found at the link above to gain further understanding of what happened during the employment relationship and after it ended. The court ultimately found in favour of the plaintiff by distinguishing a number of similar conduct cases saying that in those cases the employee had either received specific notice criticizing the employee's conduct before termination, or the employee ought to have clearly understood from the surrounding circumstances that their job was in jeopardy if their misconduct continued. In this case, the court said, the facts were quite different:

...To the extent that ITU considered the incidents relied upon for cumulative cause amounted to insubordination or other misconduct, the evidence is that from January 2011 until her termination on November 20, 2012, no written or oral warning was given to the plaintiff that the impugned social media posts were inappropriate and unacceptable and that if she did not cease and desist from such performance and change her ways that her continued employment was in jeopardy. On the contrary, she received an increase in her compensation, was permitted to continue in her position even after the October 5th blog, and at the time of her dismissal with notice she was merely told that her communication style did not align with that of the ITU.

The employer's argument that the plaintiff's experience in the field of communications and the fact that she held a senior management position did not support the employer's argument because although she was spoken to on occasions about her communication style in general terms, the evidence was clear that she had never been reprimanded, disciplined or criticized for the posts that the employer relied upon for cumulative cause.

The court concluded that the employer failed to meet its onus of proof to establish cumulative cause for dismissal and awarded the plaintiff, five months notice less mitigation income based on her second period of employment with the employer of twenty-two months.

What can we learn from this case?

There are at least two lessons for employers in this case.

  1. Create and communicate your social media policies in the workplace and if something is subsequently viewed as offensive – deal with it sooner than later.
  2. Unless the offensive comments are egregious or destructive to the employment relationship, use progressive discipline.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions