While the summer has come and gone, employees' photos of
their summer activities may not be. If employees post those
photos on Facebook or similar sites, employers may be confronted
with just what employees did with their time over the
summer. And what if, on a day an employee called in sick, you
see photos of that same employee enjoying herself at a cottage,
sunbathing on a dock with a cocktail in her hand? Worse yet,
what if the site allowed you to see the actual time that the
employee posted the picture, being right in the middle of regular
working hours? A recent arbitration case out of Alberta,
Canada Post v. Canadian Union of Postal Workers (PDF),
confirms that employers can rely on such evidence of inappropriate
The Canada Post Case
In the Canada Post case, an employee was fired after
making derogatory and threatening postings about her supervisors on
her Facebook account. She made insulting comments about her
supervisors' appearance, and threatened violence against
them. The supervisors named in the postings were so upset that
they required leave from work.
When the union grieved the termination, it argued that the
employee did not intend for the employer to see the
postings. The arbitrator rejected the union's defence,
saying that the employee's comments were linked to the
workplace because she had co-workers as Facebook friends. As
such, Canada Post was entitled to rely on them and was justified in
firing the employee.
What This Means for Employers
The Canada Post case helps confirm that an
employee's comments and actions outside the workplace can
affect his or her employment. An employee cannot expect that
actions outside the workplace, even on the internet, will shield
him or her from discipline. Further, the fact that comments
may not be made directly to the "victim" is
irrelevant. That comments were made, and the employer becomes
aware of them, may be enough to justify discipline, including
termination for cause.
A word of caution. A Facebook posting will not always be
fair game to justify discipline. Employers need to be aware
that an arbitrator or judge may consider how widely and publicly
the employee broadcasted his or her bad behaviour when determining
whether the employer can use the posting to justify
discipline. Ontario case law suggests, for example, that an
employee with nearly 400 Facebook "friends" does not have
a serious expectation of privacy. By this reasoning, a
decision-maker could conclude that an employee with only a few
Facebook friends may have a reasonable expectation of privacy in
their Facebook postings. In that case, an employer may not be
able to rely on what the employee posts.
How Does This Case Relate Back to the Sunbathing Employee?
Based on these principles, what could an employer do if it were
to find an employee skipping work to sunbathe and drink cocktails
at the cottage?
Remember that a Facebook posting may form the basis for
disciplinary action against that employee. As such, the
information should be preserved (copied, printed and dated) if the
employer has any hope of relying on it.
The mere fact that an employer viewed an employee's misdeed
on Facebook (or another social media site) does not automatically
mean that the employee is "guilty". The employer
must still proceed as it would in the course of any investigation
into employee wrongdoing, including giving the offending employee
an opportunity to explain her actions.
An employer may rely on information viewed on another
employee's Facebook account to justify disciplinary
action. Proceed with caution, however, as the posting may be
off-limits if the offending employee had truly restricted access to
the offending post (e.g. she had few Facebook friends and stringent
Do not try to gather information about employees'
wrongdoing by creating fake Facebook accounts and then
"friending" employees. The employer may offend
may not be usable. More concerning, information gained through
covert means may leave the employer with information it cannot
forget, creating potential human rights-related issues. An
employer can take heart that most of the information posted on the
internet is available in some other forum, or will come out,
Viewing a Facebook misdeed does not automatically mean
termination. As in all cases, discipline must be proportional
to the misdeed, and with consideration of all mitigating
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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