Canadian HR Reporter Weekly

2 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN HR REPORTER WEEKLY A CP rail conductor has gone full steam ahead against CP Rail after being fired by the railroad in December over so- cial media activity, as seen in this Facebook post. "Hey #CPRAIL, could someone maybe call me back about the thousands and thousands of dollars in wages you owe me? No one has returned my calls or messages but I know you lurk my social media because you fired me over modelling pics and socialmediawhatnot. So, anyways, hopefully this gets your attention and we can sort this out? Ex-Employee #1000980." Stephanie Katelnikoff was fired in December after an investigation into: her conduct and actions on various social media accounts; the content of and compliance of those postings with company policies, including CP's code of business ethics, acceptable use procedures, internet and email policy; and railway operating and safety rules, according to CP. e conductor had come into conflict with her employer before, notably back in 2014 when she was fired after a train derailment — but reinstated after it was found the accident was not her fault — and again in 2016 when she was disciplined for a video criticizing CP's then-CEO Hunter Harrison. Railway safety is a top priority at CP, said the company, in a Jan. 24 statement: "Katelnikoff 's termination related to her decision to post photos of herself in unsafe situations on railway property and equipment, committing railway safety violations, along with disparaging remarks regarding the company. Her termination was not about her posting of personal photos or information per se that were not related in some way to railway safety and CP." But the evidence package presented in 2017 included "racy" photos from Katelnikoff 's online accounts, to which she objected (along with filing a grievance and human rights complaint): "I admit and acknowledge that taking pictures on or near train tracks is a bad idea, for anyone. If those pictures were the only ones in my evidence package this would be a non-issue; however, there were screen shots of completely non-rail/CP-related material and subjective comments made about them by the investigating officer; that is where my issue lay." Balancing act for employers, employees is battle highlights the perils of social media — both for employers and employees. And while employers should step carefully in monitoring employee activity online, they often have good reason to do so, according to legal experts. "It used to be that off-duty conduct, whether it happens at work or doesn't happen at work, it was difficult to establish a link to the employment relationship… but because it's such a public forum, establishing that link to the employment relationship, I think, has become easier," said Sean Kelly, a lawyer at Stewart McKelvey in Halifax. It's about balancing an employer's legitimate business interests with an employee's right to privacy, he said. "e difficulty is when those lines get blurred, and each case has to be considered on its own facts based on the nature of the position, the nature of the social media posts, the content of them, and what the implications are for the employment relationship." But the right to privacy and self-expression does not trump occupational health and safety obligations, nor does it permit employees to make disparaging comments about their employer on social media, said Kelly. "ose are both disciplinable offences." e key consideration is whether the content impacts the employer's reputation or harms its legitimate economic interests, said Andrew Shaw, a partner at Baker McKenzie in Toronto. "CP can make a pretty good argument that when you have a conductor who's (in a photo) on the tracks, that that might harm legitimate business interests." However, employers should make sure they're gathering correct information, he said. "You have the potential of making certain employment decisions incorrectly based on the information you think you're gleaning." Full steam ahead While employers should tread carefully when monitoring employee activity online, they have good reason to do so, say experts Credit: Twin Design (Shutterstock) BY SARAH DOBSON

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