by Parisa Nikfarjam, Student-at-Law at Borden Ladner Gervais LLP
More than ever, Facebook and other social media networks serve as a means of communication and a source of information. However, two recent decisions show that these networks can also serve as mediums for off-duty misconduct and that their misuse by employees can lead to disciplinary action. A posting on a Facebook page that harms the reputation of an employer may be grounds for discipline. Although the poster may have a perceived sense of privacy, this perception may not justify one’s conduct online.
One of the first clear analyses relating to termination of employees for a post on Facebook was provided by the British Columbia Labour Relations Board (the “Board”).
In United Food and Commercial Workers International Union, Local 1518 v. Lougheed Imports Ltd. (“Lougheed Imports”), two employees of an automobile dealing and accessory shop were terminated for posting offensive statements about their employer on their Facebook accounts.1
The posts included homophobic comments, angry status updates and violent statements regarding management figures. The postings named the employers, called them crooks and warned the public not to spend their money at the shop.
During the employer’s investigation, the employees did not accept responsibility for their misconduct. One of the employees alleged that comments were not made by him at all and were the result of another party hacking into his Facebook account. The employer terminated the employment of both employees for cause.
The Union filed complaints with the Board and argued that the dismissals were motivated by anti-union animus and constituted an unfair labour practice. Moreover, the union argued that the Facebook comments did not irreparably sever the employment relationship and as such, did not justify termination.
The Board found, as a preliminary matter, that because the comments were published on Facebook and were accessible to hundreds of “Facebook friends”, there was no expectation of privacy. The Board held that the comments about management amounted to insubordination. Moreover, the Board concluded that the nature of the comments constituted “egregious” misconduct and justified termination.
The analysis of the Board in Lougheed Imports was applied in Wasaya Airways LP and Air Line Pilots Association International, to determine whether a unionized employer had just cause to terminate a pilot for comments he made on Facebook.2
The employer was an airline owned and operated by First Nations communities. The employer dismissed the pilot after he posted derogatory comments with racial undertones. The comments were not explicit to First Nations people nor did they identify the pilot or his employer. It was, however, discernible that the pilot worked for an airline and that he had experience with First Nations people. A co-worker, who was “Facebook friends” with the pilot replied to the posts with his own disparaging remarks.
The pilot took responsibility for the posts and provided a written apology. The pilot was, nevertheless, terminated and his co-worker was disciplined.
The Union argued that while discipline may be warranted, termination was excessive in this case. The employer had no specific policy with respect to an employee’s use of Facebook or other social media. The employer did, however, have a mission statement that embraced First Nations values and its commitment to serving that community.
The Arbitrator agreed with the Union that the penalty of termination was excessive. However, the Arbitrator found that based on the mission statement of the company, the Facebook posts were harmful to the employer’s reputation. Given the employer’s intention to not work with the pilot again, the Arbitrator substituted the penalty of a three month deemed suspension (with pay and benefits), following which the pilot was to resign from the company.
These two recent decisions provide several factors for analyzing when an employer can discipline an employee for posts on publicly accessible websites such as Facebook:
- In both cases, the decision makers rejected that use of Facebook was akin to a private discussion amongst friends and instead determined that it was public. As such, the defense of a perceived sense of privacy may no longer be viable in cases where the employee’s posts are available to many “Facebook friends”.
- In both cases, the decision makers considered the cooperation and honesty of the employee during the investigation to justify the maintenance or substitution of discipline.
- If the employee admitted his misconduct and provided an apology, the decision maker seemed more likely to lessen the penalty imposed by the employer. In both cases, the decision makers assessed whether the employer had a policy with respect to employee use of Facebook or other social media. The absence of such a policy may mitigate against harsher disciplinary action.
- In both cases, the decision makers assessed the extent to which the comments referenced and damaged the reputation of the employer.
Discipline, and even termination, may be justified for Facebook postings as they are public comments with potentially detrimental effects for employers.
Employers should consider implementing a social media policy and training staff on the acceptable use of public forums such as Facebook so as to avoid the situations in the above-noted decisions. While termination is now a justified disciplinary action for off-duty misconduct through social media, employers may also wish to work with employees to remove the inappropriate comment(s) from Facebook or other social networks before resorting to termination.
1  BCLRBD No 190 (QL).
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