Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 her personal Twitter account that referred to an ITU congress after-party and execs who were "hungover and lamenting those tequila shots," "propaganda" by ITU at the congress, and a reference to her "flying off the deep end" at her employer. Kim testified the Facebook post was writ- ten in a "facetious, joking manner;" the tweet about the after-party was intended to con- vey she had a fun time with staff; the tweet about propaganda referred to "marketing or messaging" in an ironic, joking way; and the third tweet was meant to convey she was passionate about her job and that made her emotional sometimes. Kim said there was only one response from a athlete to the third tweet; the others had no comments. Complaints about employee's conduct At the congress in New Zealand, the CEO of the Auckland World Triathlon expressed concerns about Kim to the secretary general. e CEO said Kim was difficult to work with and made things difficult for that organiza- tion's media manager. At the secretary gen- eral's request, the CEO sent a formal letter by email outlining his concerns to ITU. ITU also received an email from the chief executive of the British Triathlon outlining concerns over tweets Kim made on her per- sonal Twitter account expressing views that in her opinion showed little regard for certain athletes and were "effusive in personal praise for some athletes and showing a startling lack of balance." Since Kim was responsible for ITU communications policy, the execu- tive felt the athletes might feel Kim — and by connection ITU — had little respect for them. Kim testified she had interacted with these individuals and neither had mentioned their concerns directly to her. On Nov. 20, ITU terminated Kim's em- ployment for "derogatory and defamatory comments on social media" and the formal complaints it had received from other triath- lon organizations about Kim's unprofessional conduct and negative attitude. is bahav- iour was particularly inexcusable because of Kim's position as senior manager of com- munications, the organization said. Kim was given two weeks' salary in lieu of notice with the option of the payment of her salary until Dec. 31 if she signed a release. Kim sued for wrongful dismissal, claiming ITU terminated her without cause "suddenly and without advanced warning." She testified she was confused and if she had been told the organization had issues with her conduct she would have changed and behaved differently. e court noted ITU didn't rely on a single act of misconduct for just cause, but rather used the tweets, blog and two complaints as grounds for dismissal. ITU argued the sec- retary general had met with Kim on numer- ous occasions and had indicated to Kim her communication style was inappropriate, as well as warned her not to make "controver- sial work-related comments on social media." However, the court found Kim received no oral or written warnings that her con- duct was unacceptable and could result in discipline including dismissal. In fact, the evidence showed she received annual raises and was permitted to continue working after her emotional blog post. e court acknowledged Kim, with her experience in communications, should have known better than to use social media as she did. It also accepted that the secretary gen- eral spoke to her about her communication style. However, "the evidence is plain that (the secretary general) never reprimanded, disciplined or criticized (Kim) specifically regarding the content of the social media posts relied upon by ITU for cumulative cause." e discussions didn't qualify as a formal warning, said the court. e court determined there was insuf- ficient cause for ITU to dismiss Kim and ordered ITU to pay her five months' pay in lieu of notice plus benefits, less money Kim earned working in another position she found in the last two weeks of January 2013. for more information see: • Kim v. International Triathlon Union, 2014 CarswellBC 3435 (B.C. S.C.). January 7, 2015 | Canadian Employment Law Today AbouT THE AuTHoR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. cRedit: ShutteR_M/ShutteRStock The employee was never reprimanded, disciplined or criticized for the social media posts. The casual discussion didn't qualify as a formal warning.

• Cover