Canada: New Challenges For Old Laws: B.C. Court Considers Employee Misuse Of Social Media

The Supreme Court of British Columbia's ruling in Kim v. International Triathlon Union (International Triathlon Union) is the first reported court decision to consider termination of a non-union employee for postings made on a social media platform. By contrast, labour arbitration decisions addressing the discharge of unionized employees for misuse of social media have become common over the past several years. International Triathlon Union suggests that the courts will apply traditional employment law principles (e.g., cumulative cause and progressive discipline) to cases involving the misuse of social media by non-union employees. However, this approach leaves some uncertainty as to the role of factors familiar from labour arbitration decisions, such as the nexus between social media postings and the workplace, and actual or potential harm to an employer's reputation resulting from the public nature of comments on the Internet.

INTERNATIONAL TRIATHLON UNION

In International Triathlon Union, the defendant employer (ITU) terminated the employment of its senior manager of communications for cause on the basis of unprofessional and insubordinate postings on the employee's personal Twitter account, Facebook account and blog, as well as formal complaints made against the employee by other triathlon organizations. ITU argued that the plaintiff's dismissal should be considered in the context of her position in a professional and managerial role, and as the "voice" of ITU.

The social media postings at issue were as follows:

  • Tweets by the employee during the Olympic Games in August 2012, in which she commented on prior media speculation about two triathlon athletes intentionally tying for gold, and in particular said: "will prob get in trouble for this but i don't care; team tactics failed. the 6 medallists were on podium"
  • A posting on the employee's personal blog on October 5, 2012 titled "taking sh*t" in which she compared interactions with her boss to psychological and physical abuse by her mother. She wrote, "my mother is the only person on earth who was so skilled as [sic] making me feel like an insignificant bag of sh*t and made me feel as though i was never good enough, for anything. until today. today for the first time in a long time i felt like that kid all over again; beaten, discouraged, alone and scared, after the most disappointing conversation you could possibly have with your boss." The employee further wrote, "just like when i was a kid,...this person that i stupidly thought cared doesn't give a sh*t and just wants to beat my head in."
  • One Facebook message from late October 2012 after the triathlon world championships, which read, "2012 ITU season...DONE. now leave me alone until 2013!", as well as three tweets, one undated and the others from October 22 and November 4, 2012. The tweets read: "surprisingly fun congress after-party last night. probly [sic] the 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..."; and "hey ITU, remember this next time I fly off the deep end...@Relationship 1O2: If I didn't care, I wouldn't get mad."

ITU terminated the employment of the plaintiff on November 20, 2012 upon her return from three weeks' vacation.

The court rejected ITU's argument that it had just cause to terminate the plaintiff's employment. Justice Cohen found that ITU had relied on cumulative cause for termination, rather than a single instance of misconduct in the form of the October 5, 2012 blog posting. Applying the test for cumulative cause from deficiencies in job performance, the court held that ITU had failed to provide the plaintiff with an "express and clear" warning that the social media posts were inappropriate and unacceptable, and that her employment would be in jeopardy if her performance did not improve. Instead, the plaintiff received an increase in salary, was allowed to continue in her job position after the October 5, 2012 blog posting and, during her termination meeting, was told merely that her communication style did not align with that of ITU.

Justice Cohen did not consider the plaintiff's senior management role and her experience in the field of communications to be sufficient to warrant dismissal given that the plaintiff was never reprimanded, disciplined or criticized for her social media postings.

The plaintiff employee was awarded damages equivalent to five months' notice of termination, which the court held was appropriate in light of her length of service (22 months), age (34 years old) and the availability of similar employment opportunities.

Interestingly, and presumably due to the absence of reported court decisions dealing with employee misuse of social media, the case was argued by way of analogy to court decisions dealing with an employee's delivery of disrespectful and inflammatory letters to a superior, the employer's board of directors, shareholders or others. The employer's argument that the plaintiff's conduct was more egregious because "she published her comments on a forum with a worldwide audience, and knowing she had followers in the global triathlon community" (paragraph 170) did not appear to gain traction with the court.

LABOUR ARBITRATION DECISIONS ON SOCIAL MEDIA

By contrast, labour arbitration decisions addressing the misuse of social media by unionized employees have in many instances emphasized the nexus between social media postings and the workplace, and actual or potential harm to the employer's reputation resulting from the public nature of comments on the Internet. A number of such labour arbitration decisions use the framework for assessing off-duty conduct from Millhaven Fibres Ltd v. Atomic Workers Int'l Union, Local 9-670 (1967), which includes consideration of harm to the employer's reputation or product, along with other factors such as the effect of off-duty conduct on the ability or willingness of other employees to work with the grievor.

The following labour arbitration decisions provide an interesting comparison to International Triathlon Union:

  • Re Lougheed Imports Ltd. (cob West Coast Mazda) (2010) is the leading labour arbitration decision in B.C. on employee misuse of social media. In this decision, the B.C. Labour Relations Board upheld the for-cause termination of two grievors for postings made on Facebook. One grievor made offensive and egregious comments about his manager and supervisors, which escalated in seriousness. The other grievor named the employer in one of his posts and encouraged people not to spend their money at the employer's business. The Board agreed that the grievors' dishonesty in the employer's investigation compounded the misconduct.
  • In The City of Toronto and The Toronto Professional Fire Fighters' Association, Local 3888 (Bowman) (2014), the arbitrator upheld the termination of the grievor for off-duty tweets from his personal Twitter account that were sexist, misogynistic, racist and otherwise offensive. The employer was alerted to the grievor's conduct through a newspaper article that reported on the tweets in the context of the Toronto Fire Services' efforts to recruit women. In considering the grievor's discharge, the arbitrator characterized the tweets as "very serious misconduct" and held that the employer faced actual as well as potential damage to its reputation as a result of the tweets. The arbitrator concluded her analysis by expressing uncertainty about the grievor's ability "to conduct himself in a way that brings honour to the uniform." Conversely, in The City of Toronto and Toronto Professional Firefighters Association, Local 3888 (Edwards) (2014), a tweet by another Toronto firefighter featured in the same newspaper article was found not to warrant discharge, but rather a three-day unpaid suspension.
  • In Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada (Facebook Postings Grievance) (2012), the arbitrator considered the discharge of two grievors for prolonged and deliberate Facebook postings that were derogatory to the grievors' supervisor and, in the case of one of the grievors, the employer as well. Both grievors had been warned about the postings, which the arbitrator characterized as "very public." The arbitrator upheld the discharge of one grievor and substituted a one-year disciplinary suspension for the other, distinguishing between them based on factors including nature of position, length of service, desire to repair the work relationship and provocation.
  • In Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance) (2007), the arbitrator upheld the discharge of a personal caregiver at a home for the aged who posted comments on her public blog that were insubordinate to management and derogatory of her co-workers, in addition to disclosing personal information of residents in violation of her confidentiality agreement. The arbitrator commented that the grievor's blog was accessible by anyone with an Internet connection, and further characterized the comments as "an attempt to undermine the reputation of management at the home and undermine their authority."

CONCLUSION

International Triathlon Union suggests that the courts will apply traditional employment law principles to cases involving a non-union employee's misuse of social media. It remains to be seen how factors such as the nexus between social media postings and the workplace, and actual or potential harm to the employer's reputation will affect the courts' analysis of such conduct as the case law evolves. An employer can take steps to address employee misuse of social media by:

  • Implementing a social media policy that sets out clear parameters for employee use of social media, including non-work use that affects the employer and possible disciplinary consequences for non-compliance. This policy should be clearly communicated to employees and consistently enforced.
  • In the event of a violation of the social media policy, consider whether progressive discipline is warranted, or whether the conduct is so severe that it has resulted in a breakdown in the employment relationship. Employers should document any warnings or reprimands to establish an evidentiary record. Any actual or potential harm to the employer's reputation as a result of the employee conduct should also be tracked.
  • Where asserting just cause for termination, make a clear determination as to whether there is cumulative cause or a single instance of misconduct. Employers should consult legal counsel when considering whether to terminate an employee's employment for misuse of social media.

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.

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