One of the first social media confidentiality cases arose out of
a health care employment relationship. In CAW-Canada, Local 127
(J.C.) v Chatham-Kent (Municipality),  OLAA No 135 (QL), the
grievor was a personal caregiver with eight years' service and
some history of discipline. She was discharged after making a
number of blog entries and posting photos. Some of the photos she
posted were of co-workers and one was of a resident patient. In her
blog entries, the grievor criticized management decisions,
identifying one manager by first name and another by initials. Some
comments were derogatory and were laced with coarse language. The
grievor also complained about several residents using their first
names and even revealing one resident's diagnosis. The employer
had a training manual saying that each employee was required to
ensure that all information obtained during the course of duty was
to be kept from social conversation and to remain confidential. The
manual clearly said that discipline, including termination, would
follow such disclosure. Arbitrator Williamson recognized that
health care sector employees "are held to a high standard in
matters of maintaining the confidentiality of personal
information" and upheld the discharge.
The facts in Credit Valley Hospital v Canadian Union of Public
Employees, Local 3252 (Braithwaite Grievance) (2012), 214 LAC (4d)
227 were tragic. A part-time Environmental Service Representative
(non-medical position), with five years' service was discharged
when, after assisting in cleaning up a suicide scene, he took two
pictures with his cell phone and later posted them on Facebook with
the following captions: "Mother pleads with kid not to
jump..." and "This is what I have to clean up". The
employer said these actions breached patient, employee and even the
hospital confidentiality, relying on an Employee/Volunteer
Confidentiality Form that the grievor had signed when he was hired.
This form said patients and staff members had a reasonable
expectation that their personal information would be treated in
complete confidence and that confidential information included
verbal, written and electronic data concerning patients, staff and
hospital business. The policy said that disclosure without
authorization would result in disciplinary action up to and
During the hearing, the grievor claimed to be unaware that the
suicide victim was a patient. Arbitrator Levinson upheld the
discharge saying that the grievor had "constructive
knowledge" that the victim was a patient and that the
grievor's actions were culpable. In addition, the arbitrator
noted that the grievor was not remorseful and did not fully accept
responsibility for his misconduct. This undermined positive
rehabilitative prospects. Although noting that there might have
been some "spur of the moment" lack of judgment on the
grievor's part, Arbitrator Levinson found that once the photos
were posted on Facebook, they had the "hallmark of
premeditation", given the passage of time between when the
pictures were taken and when they were posted, and given the fact
that they were posted during the grievor's break. Arbitrator
...By his actions of taking the pictures and posting them on
his Facebook page with comments that others viewed, Mr. Brathwaite
without any justification has put his own self-interest and
feelings ahead of the well-known, the well-understood and the
all-encompassing fundamental obligation on employees to maintain
the confidentiality of patient information. ...
Social media is here to stay and the Credit Valley Hospital
decision confirms that employers in all businesses where
information must be treated with confidence must have policies and
disciplinary consequences in place to limit their liability and to
effectively redress a breach. The employer's best defence will
be to have a confidentiality policy in place as addressed in Tips on what your confidential information policies
must have. In addition, employers today should implement a
social media policy to drive the point home further. Such a policy
should specifically prohibit defamatory postings relating to the
employer or a co-worker; insubordinate or insolent comments; or any
social media posting that would damage the employer's
reputation. A recent example of co-worker harassment, even though
occurring during off-work hours, that resulted in discharge is
discussed in our recent blog Keep your Facebook comments to yourself... or
better yet, don't put them out there at all.
As with any other policy, a social media policy must be
communicated, involve some training and acknowledgement and must be
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guide to the subject matter. Specialist advice should be sought
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