Social Media in the Workplace — Recent Case Law Developments
Employee use of the Internet, social media sites such as Facebook and blogging raises new challenges for employers. Increasingly, the line between "work" and "play" is blurred. All Western-based employers will be interested in the following recent cases from Alberta and British Columbia that concern social media:
Service through Facebook: Knott Estate v. Sutherland
In February 2009, Master Breitkreuz of the Alberta Queen’s Bench granted an order permitting the plaintiffs to serve one of several defendants by: a) publishing a notice in the newspaper; b) forwarding a copy of the Statement of Claim to the Human Resources Department where that defendant had previously worked; and c) sending notice of the action to that defendant’s Facebook profile. Although precedent for "service by Facebook" exists in Australia and New Zealand, this appears to have been the first order of its kind in Canada.
Dismissal Reduced to Suspension after Offensive Remarks Posted on Employee’s Blog: EV Logistics v. Retail Wholesale Union, Local 580
The arbitrator overturned the Grievor’s dismissal, which followed from the employer’s discovery of the Grievor’s blog. The blog contained hateful and racist remarks and commentary, as well as photos of Nazi paraphernalia. The Grievor specifically named his employer in the blog and referred to certain employment activities. For these reasons, the arbitrator accepted the employer’s submission that the Grievor’s off-duty conduct was sufficiently connected to its business interests and was of such a serious nature that discipline was warranted.
However, because the Grievor’s hateful remarks were not specifically directed at his employer or his colleagues, and because he immediately shut down the blog when it was discovered and issued an apology, the arbitrator determined the Grievor would be capable of successful reintegration into the workplace and reduced the dismissal to a disciplinary suspension.
Dismissal Upheld after Derogatory Remarks About Employer Posted on Facebook: Lougheed Imports Ltd.
In this case, the British Columbia Labour Relations Board upheld the termination of two employees who were fired because of derogatory comments made about their employer on Facebook. The employees had issued the comments in the context of a certification campaign that included damaging remarks about the employer’s business and insults about supervisors and managers. The Union argued the Employer did not have proper cause but, if such cause did exist, the terminations were motivated by anti-Union animus.
The Board found that the employees could not have had a serious expectation of privacy over comments posted on their Facebook profiles, citing with approval the 2009 reasons of the Ontario Superior Court of Justice in Leduc v. Roman,  O.J. No. 681. The two employees had 100 and 377 "Facebook friends," respectively. The Board found that the posted comments were damaging to the Employer’s business. Because the Facebook friends included co-workers, former employees and an existing manager, the Board treated the employees’ comments as though they had been made in the workplace. Accordingly, the Board found proper cause for dismissal that was not motivated by anti-Union animus.
Dismissal Upheld after Derogatory Remarks About Employer Posted on Blog: Alberta v. Alberta Union of Provincial Employees of Alberta (R. Grievance)
As a result of the serious illness and subsequent death of her father, the Grievor experienced feelings of helplessness and anger, and attended therapy provided through her workplace Employee Assistance Program. The EAP therapist 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 by the public. While a large portion of the blogs contained personal writings unrelated to the Grievor’s workplace, some of the comments posted mocked supervisors and co-workers and attacked management. For example, the Grievor wrote: "Does anyone else out there live in a world like mine with imbeciles and idiot savants (no offence to them) running the ship … and is anyone else’s ship being sailed down the highway to hell?"
Although the Grievor used aliases when referring to co-workers, she disclosed that she lived in Edmonton and worked for a department of the Alberta government. The Grievor’s 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 Grievor’s office were easily able to identify the individuals described in her blogs, and many who read the blogs testified that they were hurt by the entries and would have difficulty working with the Grievor in the future. Accordingly, a majority of the arbitration panel upheld the Grievor’s termination on the basis of the blogs’ destructive impact on the employment relationship.
Tips for Employers
The Knott v. Sutherland case opens the door for a new type of service in Canada, and confirms the important place that social media sites like Facebook play in today’s world. The EV Logistics, Lougheed Imports and R. Grievance cases confirm that, notwithstanding the general rule that discipline for employees’ off-duty conduct should be rare (as employers are not the custodians of employees’ private lives), such discipline may be warranted where an employee’s use of the Internet, blogs and social media sites prevents him or her from:
performing his or her duties satisfactorily;
working effectively with colleagues; and
adhering to an employer’s confidentiality policies.
Similarly, discipline is likely warranted where an employee’s use of the Internet, blogs and social media results in the harassment or defamation of management or fellow employees, or undermines management’s ability to direct its workforce.