Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 Employee wrongfully dismissed for social media postings International organization had serious concerns over employee's social media use and attitude but never officially warned her until her dismissal By JEffrEy r. SmiTh A British Columbia employer wrongfully dismissed an em- ployee it fired for inappropriate social media activity, the British Co- lumbia Supreme Court has ruled. Paula Kim, 34, was hired by the Interna- tional Triathlon Union (ITU), the interna- tional governing body for triathlon compe- tition based in Vancouver, in 2006 to be a media liason. She wrote press releases, ath- lete biographies, web stories and the ITU newsletter. ough Kim enjoyed working in the sports industry, the hours were long and more stressful than her previous work with a cable television network and a pro- fessional sports franchise. e working environment at ITU was casual and Kim got along well with people. She claims there was no official social media policy, so she didn't worry about her own social media sites and a personal blog that was separate from the ITU operations. Kim left her position in February 2009 to seek another opportunity. She left ITU on good terms and in late 2010, after she had left the newer job, she began doing contract work for ITU. In January 2011 ITU hired Kim full-time as the senior manager of communications. e position was similar to her previous ITU job but with a new title and more responsibility, reporting directly to ITU's secretary general. ere was no written employment agreement. When Kim returned to ITU, she found the workplace to have the same casual at- mosphere where employees gossiped about athletes, other federations and general topics. She was encouraged to be formal when necessary, but she was usually casual on a regular basis. Kim didn't have any for- mal performance reviews and no-one spoke to her about any issues, so she assumed ITU was happy with the job she was doing. Kim had two Twitter accounts, one per- sonal and the other where she identified herself as an employee of ITU. She also had a personal Facebook page — with several ITU employees as friends — and a personal blog page. Kim claimed the secretary gen- eral asked her to remove any reference to ITU in her personal Twitter handle and she would be free to say what she wanted. Kim had a good relationship with her boss, the secretary general, other than a disagreement over the work performance of another ITU employee in August 2011, another over the front page of the ITU web- site, and one occasion where the secretary general emailed her to say she wasn't com- fortable with the language Kim was using in her emails to her. Kim felt their disagree- ments were related to their best intentions for ITU and they always resolved them. disagreement over paid vacation time In early 2012, Kim felt she had reached an agreement with the secretary general that she could take all of her vacation in Novem- ber and December, as she had done in 2011 — which with her working some weekends would give her two full months of paid vaca- tion. Her boss wanted to keep the arrange- ment between them, so Kim didn't officially request it. However, in September, Kim re- ceived an email about formalizing the time off, suggesting she would take one month with pay and one without. Kim responded that this was not the arrangement agreed upon. She was upset and said "I've given my entire year and my sanity to ITU and suddenly this is an issue." e secretary general then told Kim she had to be in the office as much as possible in November and December, which surprised Kim because there weren't any events scheduled and the big ITU congress would be over. is further discouraged and disap- pointed Kim. e secretary general denied approving two months of paid vacation, saying she only wanted the fact Kim was taking leave between them so other staff wouldn't find out and said Kim had to set up her leave arrangement with the payroll supervisor. On Oct. 5, Kim, upset over the vacation issue, wrote an emotional blog on her per- sonal blog page. In the blog, Kim compared the secretary general's actions regarding her vacation to her abusive mother who had made her feel terrible growing up. Kim wrote in the blog "sometimes people are just evil pieces of s--- and just need to bring you down to make themselves more pow- erful or better than you." She concluded by saying that "thanks to my current boss…my spirit is broken." Kim said mostly friends and family vis- ited her blog, but a few ITU staff members alerted the secretary general to Kim's blog. When she read it, the secretary general was shaken and felt embarrassed. ITU was embarrassed about this type of communi- cation coming from the senior communi- cations manager, especially since the ITU congress was about to start in New Zealand. Other directors and officers at the congress mentioned the blog to the secretary general. On Oct. 23, Kim posted on her person- al Facebook account following the world championships "2012 ITU season…DONE. Now leave me alone until 2013!!!" Around the same time, she posted three tweets on CasE in poinT: WRONGFUL DISMISSAL JUST CAUSE for dismissal can be difficult for employers to prove, as courts and arbitrators will generally lean in favour of the employee, who is seen to be on the weaker side of a power imbalance of the employment relationship. Employees are generally seen to be more dependent on their jobs for reasons of financial support and identity, so it's a serious situation if they lose those jobs. So to terminate employment without giving reasonable notice or pay in lieu thereof, there needs to be proof of serious misconduct — and an opportunity for the employees to resolve the issues that put their employment in jeopardy in the first place. Giving employees a chance to fix things is a key element of just cause. The concept of progressive discipline — where an employee receives a serious of warnings and guidance to help them improve and potentially save her job — is commonly accepted in employment law. If an employee is terminated for reasons that are a complete surprise to her, then there's a chance the termination might not stick — or at least just cause won't. BACKGROUND

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