Over a decade had passed since Ellen Simonetti, dubbed the
"Queen of the Sky" was fired by Delta Air Lines after her
infamous "Diary of a Dysfunctional Flight Attendant"
blog. Simonetti wasn't fired simply for blogging about her
interesting lifestyle or worldwide travel as a flight attendant.
According to Delta Airlines she was terminated for associating her
blog with the company and for including, what the company deemed to
be, inappropriate pictures and material.
While that decision was settled out of court, it did stoke a
debate between employees' freedom of expression and
employers' rights to control the dissemination of their
sensitive information and protect their reputation and brand.
This debate was rekindled recently in the British Columba
Supreme Court decision in Kim v International Triathlon
Union, 2014 BCSC 2151.
Kim, a manager at International Triathlon Union (ITU), was
terminated after making several negative blog, Facebook and tweet
posts about her employer and her direct supervisor. In one blog,
Kim compared her relationship with her supervisor to her alleged
mistreatment as a child, saying she felt "like that kid all
over again; beaten, discouraged, alone and scared."
ITU asserted that Kim's persistent public comments through
social media were unprofessional, inflammatory, and insubordinate
and evidenced a culmination of misconduct warranting cause for
dismissal. In its estimation, Kim ought to have voiced her concerns
regarding the organization and her supervisor internally to the
board of directors, rather than disseminating her negative views of
ITU to a worldwide audience and, given her senior communications
position, ought to have known better than to misuse social media as
However, Kim was successful in her wrongful dismissal claim,
asserting that her posts were written in a facetious joking manner
that ought to have been apparent to her supervisor. Kim claimed
that ITU did not have a social media policy and had not given her
sufficient warning that her posts were considered by the
organization to be inappropriate, and would lead to her
Second, the court is not granting employees a free pass to
disclose confidential information or to allow the airing of
workplace grievances on social media. Rather, the courts are simply
reminding employers that disciplinary action for an accumulation of
social media misconduct must follow the established course of
The employer has established a reasonable and objective
standard for workplace conduct, including the disclosure of
company information on social media;
The employee has been given an express and clear
warning about her conduct;
The employee has been given a reasonable opportunity
to improve her performance; and
Despite a reasonable opportunity and final warning, the
employee has failed to remedy her performance.
Third, as indicated in this case, and similar arbitral
decisions, the courts and arbitrators will consider whether the
employer had a written policy as a means to provide employees with
notice of social media expectations and consequences for misuse.
Keeping a current, clear and comprehensive workplace policy
governing the use of company technology (computers, personal
devices and internet) and the use of social media to disclose
sensitive or confidential workplace information will help avoid
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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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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