When an employee turns to the internet to engage in blogging and the subject matter of the blog is the workplace and co-workers, the content of the blog can undermine the employment relationship and lead to a termination of employment for just cause. In the arbitration case of Alberta Union of Provincial Employees v. Alberta,1 on appeal to the Alberta Court of Queen's Bench,2 the majority award upheld the termination of an employee based on the destructive effect of the blogs on the employment relationship. The award was appealed to the Alberta Court of Queen's Bench on various grounds including that the majority had made a series of reviewable errors concerning: 1. the application and interpretation of the representation clause concerning disciplinary interviews; 2. the dismissal having been carried out by a person without proper authority; 3. the decision to dismiss, was based, in part, on the grievor's refusal to remove the blogs; and 4. the discipline imposed on the grievor and another employee alleged to have engaged in posting blogs of similar content was widely disparate.
The Alberta Court of Queen's Bench overturned the majority award based on a breach of the representation clause in the collective agreement and sent the case back to the Panel for reconsideration. Nonetheless, the case is instructive on the issues of the limits of an employee's freedom to publicly express views and opinions relating to the workplace, when the content is destructive to respect, trust and professional conduct, the foundation of acceptable behaviour in the workplace.
Decision
As a result of the serious illness and subsequent death of her father, the grievor was experiencing feelings of helplessness and anger and attended therapy provided through her workplace Employee Assistance Program. To deal with her feelings, the therapist had recommended that the grievor vent by writing down her feelings. Some months later, the grievor decided to implement this recommendation by posting her feelings via personal blogs on the internet, which were accessible to the public. While the blogs contained personal writings unrelated to the grievor's workplace, they also contained attacks on management, mocking and complaining about supervisors and co-workers. Although the grievor used aliases in reference to her co-workers, she had identified that she lived in Edmonton and worked for a department of the Alberta government. The department handled sensitive information regarding members of the public and required the exercise of discretion, sound judgment and confidentiality in its day to day work. The employees in the office where the grievor worked were easily able to identify the individuals being described in the blogs, which contained comments such as "Does anyone else out there live in a world like mine with imbeciles and idiot savants (no offense to them) running the ship....and is anyone else's ship being sailed down the highway to hell?".
In a split decision, the majority of the arbitration panel held that the contempt expressed by the grievor in her public blogs respecting her co-workers, management and the administration of the department seriously and irreparably damaged the employment relationship justifying the termination. The Panel determined that an employee's right of free speech is not unlimited and public ridicule of co-workers to the extent of that posted by the grievor was abhorrent and had no place in the workplace.
Conclusions
While the procedural irregularities of this case are important, the message of the case regarding the limits to an employee's right of "free speech" and proper and respectful conduct of co-workers in the workplace are instructive. Expressions of opinion by employees regarding the workplace, whether in a personal blog or otherwise, that do not meet the standards of respectful workplace conduct, may result in termination of employment for just cause. With the advent of texting, blogging, and instant messaging, messages can be forwarded, posted and accessed instantly, to a wide audience, if the author of the original message does not take care or use sound judgment. In the workplace, every worker, including management, is entitled to be treated with respect, and not subject to hurtful comments or ridicule. Complaints regarding the conduct of management or employees should be addressed within the workplace in a respectful and courteous manner. In this regard, employees are well advised to keep their personal views of the workplace out of public forums such as the internet. If they do not, they should reasonably expect to face workplace discipline, which depending upon the severity of the criticism, may properly lead to termination of employment for just cause. Employers should consider incorporating restrictions into their internet usage policies, and address consequences (both during and outside work hours) of conduct which crosses the line.
Footnotes
1. [2008] A.G.A.A. No. 20 (QL), 174 L.A.C. (4th) 371(Ponak)
2. QB 2009 ABQB 208 (Nielsen, J.)
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