A study published in 2015 revealed that 44% of the time spent by employees on the internet is for personal reasons, which represents 50 minutes per day per employee1. Using the internet and social media is now part of the daily routine of a great many workers, which means that employers are going to have to learn to deal with and adapt to this new reality.
Recent case law shows how complex this new reality can be in the workplace, where employers must manage the productivity and diligence of their employees. Employers, moreover, must now have a sound grasp of the limits of the right to freedom of expression, as certain of their employees will inevitably use social media to publicly express their opinions, including criticisms or disparaging remarks about their employers, superiors or colleagues. The decisions commented on below will help you better identify the boundary between personal and professional use of the internet.
Performance management and time theft
In a recent matter, Teamster Québec, section locale 1999 v. Société du groupe d'embouteillage Pepsi2, an employee was suspended pending an investigation into his use of his computer at work for surfing the internet and using Facebook while he was on duty and being paid overtime due to an excess workload. The investigation revealed that the employee had visited several pornographic websites and downloaded a photograph of an inappropriate sexual nature. He was consequently fired. The arbitrator confirmed his dismissal in light of the high degree of autonomy his position entailed and the fact that his misconduct took place in a context of little or no supervision.
Despite the fact that the evidence showed that the employer did not apply its computer-use policy to the letter, allowing employees to occasionally surf the internet for personal reasons while at work, the arbitrator nevertheless found that that the employee in question had exceeded the boundaries of acceptable tolerance. His absence of any regret and his making light of the situation were cited as aggravating factors by the arbitrator, who nevertheless concluded that while the employee's misconduct was serious, it did not amount to time theft.
With respect to the use of cellphones at work, in the matter of Air Liquide v. Syndicat des travailleurs d'Air Liquide, centre de distribution Varennes (CSN)3, a worker contested his suspension pending an investigation and subsequent dismissal following the discovery of his excessive use of a cellphone provided by his employer. The employee had sent nearly 1,800 text messages during a period of 32 working days. The records for his cellphone indicated that this texting represented an average of 41 minutes a day of cellphone use for personal reasons. Following the investigation, the employer decided to terminate the employee on the grounds that his conduct amounted to time theft, a serious fault, and severed the relationship of trust between himself and the employer.
The arbitrator concluded that the employee had breached his obligation to provide adequate, normal and continuous services in exchange for his salary. The arbitrator was however not convinced that the employee sought to steal from or defraud his employer, as theft or fraud requires proof of malicious and culpable intent. The arbitrator nevertheless did find that the employee had committed a serious fault, which could not however be characterized as a gross fault. He found rather that the employee had committed an error of judgment. After weighing both the aggravating and mitigating factors, the arbitrator annulled the dismissal and substituted a suspension without pay ending 30 days after the date of his decision.
Employees' freedom of expression
An employee's freedom of expression when making criticisms on social media, either while at work or away from the workplace, is to be gauged in light of various factors, including:
- the employee's status and position;
- the nature and extent of the criticism;
- the context of the criticism;
- how the criticism was expressed.
In the matter of Syndicat des travailleuses et travailleurs de la santé et des services sociaux de Sept-Îles- CSN and CSSS de Sept-Îles (Sabrina Cormier)4, an employee was fired for having twice published on social media vulgar and offensive comments about her employer and a manager at her workplace. At the hearing, the employee explained that she made her comments because she disagreed with the decision to assign her to light duties during her pregnancy rather than grant her preventive home leave.
The arbitrator first of all pointed out that the employee had the right to express her disagreement with how the employer's preventive leave policy had been applied. He added however that she should have done so respectfully, using appropriate language, without burning every bridge she came across.
The arbitrator went on to conclude that the employee's comments were baseless. In reaching that conclusion, the arbitrator took several aggravating factors into account, including the fact that the majority of her Facebook friends were co-workers at the health-care institution where she worked, which meant that her comments inevitably resulted in a worsening of the working environment there. He was moreover of the opinion that her comments had damaged the employer's reputation. Under the circumstances, the arbitrator found that her dismissal, while a severe measure, was nevertheless just and reasonable.
Quite recently, arbitrator Nathalie Massicotte rendered a decision in the matter of Syndicat des travailleuses et des travailleurs de la municipalité de Weedon – CSN v. Municipalité de Weedon5. An employee was contesting his dismissal after having published on his Facebook page a 90-second video featuring a song he had composed that made reference to his immediate superior and the mayor of the municipality for which he worked, without actually naming them. The employee, who worked as a truck driver and labourer and who was laid off at the time he published the video, maintained that he composed the song to humour a friend and co-worker who, like himself, found the labour dispute they were going through to be quite trying.
During the hearing, the employee admitted that the first verses of the song were directly aimed at the municipality's manager of public works. He also acknowledged that the song's lyrics implied that the mayor of the municipality had been using public funds for personal purposes, which he admitted was false. The arbitrator accordingly concluded that not only had it been proven that the employee committed a fault, but the employee fully admitted it.
The arbitrator noted that since the employee's actions were a clear breach of the code of deontology and ethics to which he was subject, and showed a flagrant lack of loyalty towards his employer, they clearly merited a serious disciplinary sanction. However, the fault committed did not justify dismissal, in the arbitrator's view.
The arbitrator emphasized that while the employee wanted to express his dissatisfaction with a labour dispute, he did not specifically name anyone in his song. He also noted that the song was short in duration and had only been on Facebook for a limited time. The arbitrator also pointed out that the song referred in a very figurative way to certain specific incidents and that an average citizen of the municipality would likely not make the connection between the video and the persons it targeted.
While acknowledging that some of the lyrics were disrespectful, the arbitrator was of the view that the video was published impulsively in reaction to a difficult labour dispute. He accordingly concluded that that there was no reason to fear a recurrence of such conduct on the part of the employee, as the latter sincerely regretted his actions and showed remorse when testifying before the tribunal. The evidence did not suggest that the employee's reinstatement would irremediably undermine the authority of the mayor or other members of the municipality's management. The arbitrator considered that a six-month suspension without pay was appropriate and would have the desired dissuasive effect in this case.
Some words of advice
Employers and employees must learn to identify the boundary between what is personal and what is professional when using the internet. It is thus in the employer's interest to adopt a written policy on information security and the use of computers and smart-phones. Such a policy will have the effect of lessening employees' expectations of privacy when using their employer's IT systems. It will also serve to remind employees that they must strictly limit their use of the internet for personal purposes while at work, and that they are responsible for any comments they make on social media regarding their employer or co-workers. Finally, such a policy should spell out the consequences of failing to respect the obligations specified in it, including the employees' obligation to perform work diligently, their duty of loyalty and their obligation to respect confidentiality.
It is also essential to make employees fully aware of the policy and to remind them of it on an annual basis, in order to ensure that it is fully understood by all management and staff members in the organization.
1. Olfeo 2015: La réalité de l'utilisation d'internet au bureau
2. 2015 QCTA 477 (arbitrator André G. Lavoie)
3. 2015 QCTA 354 (arbitrator François Hamelin)
4. D.T.E. 2014T-262 (T.A.), (arbitrator Denis Tremblay)
5. 2016 QCTA 165 (arbitrator Nathalie Massicotte)
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.