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Early this year, a Denver School Board suspended a 23-year-old Grade 10 math teacher who posted revealing photos of herself online. She had also tweeted that she kept marijuana in her car on school property and had graded student work while she was high. Just weeks earlier, a 22-year-old employee in California was fired after posting racist comments about Barack Obama's election victory on Facebook.

Employers and employees in Canada, too, are facing new challenges as a result of the explosion of social media use by employees at work and in their off-duty time.

Many employees assume, erroneously, that their personal social network pages and blogs are private and protected from public viewing. They may not be aware of the limitations of privacy settings on various social media platforms, or even that there are such settings.

Case law and media stories over the past few years show that employees frequently post comments and criticism in the heat of the moment and without consideration of their potential harm – to supervisors, co-workers, clients, and to the employer's or poster's reputation.

Three years ago, an airline operating in Canada's north dismissed one of its pilots for posting disparaging comments on his Facebook page about First Nations communities. The residents of these communities comprised 90 percent of the airline's customers1.

In another example of inappropriate posting, a personal care-giver at a seniors' residence in Ontario created a website accessible to the general public. She published information and photos of residents and made inappropriate comments about them and the management of the home. The employee was terminated on the grounds of breach of confidentiality and making inappropriate remarks about management. An arbitrator upheld the termination2.

Hurtful or derogatory postings about an employee's supervisor or co-workers may also give rise to complaints of harassment and discrimination. In a 2012 decision, the B.C. Labour Relations Board upheld the termination of two employees who, between them, had nearly five hundred Facebook friends, including co-workers and superiors3. Their postings targeted the employer and its managerial staff in a threatening and explicit manner and discouraged customers from conducting business with the employer. In upholding the dismissals, the Board was influenced by the fact that the postings were damaging to the employer's reputation and were disparaging of management. The Board also took into account that the employees lied about the postings during the investigation and did not offer an apology or immediately retract the postings.

In an Alberta case of inappropriate online posting, an employee referred to her supervisor as the "lunatic in charge". She insulted easily identifiable co-workers, demonstrated an unprofessional attitude toward clients, and disclosed confidential correspondence4.

These sorts of online comments pose an enormous challenge for Ontario employers who have an obligation under the Occupational Health and Safety Act to provide workers with a workplace that is free from violence, harassment and bullying.

Notwithstanding the numerous decisions in which dismissals for inappropriate postings were upheld, there is still uncertainty as to what will and will not constitute cause for dismissal in the social medial realm. As with all cases where misconduct has been alleged, the context within which the on-line activity occurred and its impact on the employer, its clients and other employees must be considered when determining if termination is the appropriate remedy.

For example, a B.C labour arbitrator recently overturned the dismissal of an employee for hateful comments he had posted on a publicly-accessible blog. The employee (whose postings identified his employer), professed his adoration of Adolph Hitler, fantasized about violence and killing and made racial slurs. When his employer confronted him, he immediately deleted his comments and posted an apology. He also wrote a letter to the employer, expressing remorse and embarrassment. In concluding that discharge was too severe a penalty, the arbitrator took into account that the employee was only 22 and emotionally immature, that his hostile remarks were not directed at his employer or his colleagues, that he had apologized, and that he had a clean disciplinary record.

Given the constantly evolving possibilities of social media and their potential harm, prudent employers would be advised to take steps to educate their employees (and themselves) about appropriate online workplace-related postings. Employees for their part should establish robust privacy settings on their Facebook and other online pages. To avoid the often unintended consequences of careless or malicious online postings, they should also make it a habit to pause and review the appropriateness of any posting that could possibly have an impact on their workplace or their employer before pushing the send button.

Author: Ella Forbes-Chilibeck, Copyright 2013 Nelligan O'Brien Payne LLP

1Wasaya Airways LP v. Air Line Pilots Association, International, [2010] C.L.A.D. No. 297 May 12, 2010
2Chatham-Kent v. National Automobile, Aerospace, Transportation and General Workers Union of Canada [2007] O.L.A.A. No. 135
3Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482
4Alberta v. Alberta Union of Provincial Employees, [2008] 174 L.A.C. (4th) 371

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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