The internet and the opportunities created by social media for business present many new challenges for employers and those involved in management of organizations. The rules defining appropriate standards for electronic communications continue to evolve. The standards reflect a balance between employee freedom of speech and the rights of individuals to work in a respectful workplace and not to be subject to communications or conduct that constitutes harassment. Social networking sites such as Facebook, LinkedIn, MySpace, Twitter, blogging and other forms of electronic communication are prevalent in our workplace and personal life. An employer can benefit from social media for effective networking and outreach opportunities. It also presents a cause for concern on how to manage the use of social media within the workplace. Inappropriate use of social media by an employee may expose the employer to tortious and contractual liability. It may also blemish the reputation and goodwill of the employer.
Although many employers have introduced written policies relating to technology usage and blogging, the law is evolving gradually to meet the needs of employers in establishing appropriate standards for electronic communications and blogging. A number of decisions of arbitrators, tribunal members and the courts provide needed guidance in this area.
Case Law Update
Lougheed Imports Ltd. (c.o.b. West Coast Mazda) (Re),
 B.C.L.R.B.D. No. 190 ("Lougheed Imports")
In Lougheed Imports, the United Food and Commercial Workers International Union, Local 1518(the "Union") alleged that West Coast Mazda had breached the Labour Relations Code interminating two of its employees. The employees had made a number of posts on their Facebook profiles that ranged from venting about workplace frustrations to "offensive, insulting and disrespectful comments" about their supervisors. The Union argued that the terminations were at least in part motivated by anti‐union animus and should therefore be overturned. TheBoard however agreed with the employer: the Facebook posts constituted proper cause for termination and West Coast Mazda had not breached the Code in terminating the employees.
The former employees, identified only as A.P. and J.T. due to the "embarrassing and offensive nature" of their comments, had been employed at West Coast Mazda for two and four years, respectively, and both were known to the employer as union supporters. The employer was given notice of the Union's application for certification on August 27, 2010 and the Union was certified shortly thereafter. As evidence of anti-union animus the Union pointed to the fact that it was also on August 27 that F.Y., a manager at West Coast Mazda and Facebook friend of both J.T. and A.P., began monitoring J.T.'s Facebook profile and keeping track of his work-relatedposts. The Board accepted F.Y.'s claim that the timing was a mere coincidence and that J.T.'s Facebook status on August 27, which read "Sometimes ya have good smooth days, when nobodys fucking with your ability to earn a living....and sometimes accidents DO Happen, its unfortunate, but that's why there called accidents right?", was J.T.'s first work-related post andthe first to cause F.Y any concern.
J.T. continued to make work-related posts on his Facebook account over the following weeks and eventually removed F.Y. as a friend on the site. While this effectively meant that F.Y could no longer view J.T.'s profile, F.Y. continued to monitor J.T.'s posts with the help of a former employee who remained on J.T.'s friend list. The posts included aggressive and threatening statements, references to F.Y. as "a complete jack‐ass", a "half-a-tard", and "the Fixed Ops/HeadPrick", and allegations that F.Y. was engaged in a sexual relationship with another male manager at West Coast Mazda. The Board found that A.P. had also encouraged people not to spend money at his employer's business because West Coast Mazda had "ripped off" customers in the past.
On October 6, 2010, the employer conducted separate investigatory meetings with J.T. and A.P.at which they were represented by the Union. Each employee was presented with copies of the Facebook postings and asked whether they had made inappropriate comments about the business or the managers and both J.T. and A.P. denied making the postings. The following day, both employees were advised that their employment was terminated and were given letters setting out the reasons which involved "making disrespectful, damaging and derogatory comments on Facebook" that were inappropriate and insubordinate, created a hostile working environment, and were likely to damage the reputation and business interests of the employer.1
The Union relied on ETL Environmental Technology,  B.C.L.R.B.D. 216, for a list of factors to be considered in determining if a termination was motivated by anti-union animus. Among the factors is "the employer's previous attitude towards and treatment of similar conduct"which here, the Union argued, indicated a demonstrated failure to discipline employees for the racist, sexist, homophobic, and xenophobic comments often heard on the shop floor.2 TheBoard found that such comments were not "similar conduct" because there could be no serious expectation of privacy given that the Facebook posts were visible to everyone on the employees' Facebook friends lists (i.e., 377 of J.T.'s friends and almost 100 of A.P.'s) and the posts were therefore damaging to the employer's business.3 Similarly, calling the manager derogatory and insulting names was not similar conduct to the inappropriate comments made at the business on a regular basis.
The Board noted that while employees are entitled to their opinions, displaying opinions about work related issues "may have consequences within the employment relationship".4 The Board also observed that this was a relatively novel issue in that the employer had never encountered a situation involving an employee's use of Facebook and this helped justify the employer's conduct in monitoring the Facebook profiles over time rather than confronting the employees or taking disciplinary action at the outset. Here, the fact that the employees had no previous discipline did not outweigh the fact that West Coast Mazda had never encountered similar conduct and that the offence was serious insubordination and conduct damaging to the employer's reputation.5
Chatham-Kent (Municipality) v. National Automobile, Aerospace,Transportation and General Workers Union of Canada (CAW-Canada), Local 127(Clarke Grievance),  O.L.A.A. No. 135 ("Chatham-Kent")
In Chatham-Kent, the employer terminated the employment of Jessica Clarke ("Clarke") for breach of the confidentiality agreement, insubordination, and conduct unbefitting a personal caregiver at the home for the aged where she worked. The termination had occurred after the employer discovered that Clarke, a personal care attendant at a home for the aged, had created a blog, accessible to anyone with internet access, where she published resident information and pictures without resident consent and had made inappropriate comments about residents entrusted to her care. It was the position of the union that there was no just cause for any discipline while the employer argued that Clarke's actions constituted a serious breach of confidentiality in circumstances where there is an elevated duty to ensure privacy. The arbitrator found that, given the nature and extent of Clarke's misconduct, the decision of the employer should not be disturbed and the grievance was dismissed.
The parties agreed that Clarke had maintained the blog in question for approximately four months in 2006 until she deleted it after being interviewed about it by management. The public blog, described by the arbitrator as "ill-written.... blunt and laced with coarse language, and...bitchy in style with an attempt at humour" included expressions of displeasure at decisions being made by management (identified by first name and last initial), criticisms of co workers,disparaging remarks about the business generally, and discussions of residents which included their first names and various medical conditions. It was also not in dispute that Clarke had twice signed a confidentiality agreement "by which she agreed to respect the privacy of residents,their families and other employees, and to treat the Home's clinical, administrative, and financial information concerning residents, their families, employees, and the Home as confidential information".6 It was, however, the union's submission that Clarke was not computer literate and believed the blog to be private and only available to her three coworkers and not the public at large. The union also argued that "the content of the blog is not much different from the kind of comments made daily over lunch by the employees" and that there was no attempt to undermine the dignity of any resident.
The arbitrator reviewed Clarke's blog, noting descriptions of the home as "a hole", statements that she "is friggin pissed off" and that she "hates her job" and references to management as"stupid fucking assholes", and found that blog comments such as these "must be found to be insolent disrespectful, and contemptuous of management" and an attempt to undermine their reputation and authority.7 In finding that such conduct was worthy of discipline he noted that Clarke "was insubordinate to management in her blog writing in retroactively contesting and challenging the directives she had been given and the decisions that had been made by management, that could be seen to undercut the authority embodied in management to run the premises and direct the work force, and that all of this was set out in a blog accessible to the general public".8
To view this article in full please click here.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com
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.