Canadian HR Reporter

T he use of social media in the work- place has exploded in recent years — and employers are struggling to keep up. It's not surprising, given the easier access to the Internet, the persis- tent popularity of mobile devices and the introduction of new social media outlets. A look back at notable Canadian decisions and events demonstrates the need for both employees and employers to understand how social media use fi ts into traditional employment and labour concepts. Social media policies need to be integrated into companies' existing policies on protection of privacy and confi dential information, workplace safety, conduct in the workplace and discipline. Notable cases In the 2011 Lougheed Imports Ltd. (c.o.b. West Coast Mazda) and UFCW Local 1518, two B.C. employees of West Coast Mazda were terminated after making Facebook postings described as "off ensive, insulting and disrespectful." e union fi led unfair labour practice complaints with the British Columbia La- bour Relations Board, alleging the employer had no just cause for the terminations. e board dismissed the complaints, fi nding that "(t)he fact that the complainants had no previous discipline and the employer knew they were key supporters of the union does not outweigh the fact that the employer had never encountered similar conduct, and the work off ence was serious insubordination and conduct damaging to the employer's reputation." The vice-chair relied on the Ontario decision in the 2009 Leduc v. Roman and determined the employees could not have an expectation of privacy as Facebook post- ings were "akin to comments made on the shop fl oor." e demarcation between professional and personal online identity has shifted in favour of companies maintaining a com- petitive edge, in an ever-evolving media landscape. In lieu of strong policies regard- ing social media use, companies are at risk of sacrifi cing professional identity to the personalities that fuel it. In the 2014 Kim v International Triath- lon Union, a former communications man- ager brought a wrongful dismissal action against her employer, a triathlon governing body. e manager was terminated with two weeks' notice pay for multiple issues, including remarks made over the course of multiple tweets and a particularly damag- ing blog entry. In her position, the man- ager's social media postings were found to be critical to athletes and triathlon offi cials. In the aftermath of a dispute with her em- ployer, the manager made disparaging re- marks on her personal blog, comparing her supervisor to her own mother, whom she felt similarly mistreated by. It was claimed these derogatory and defamatory com- ments about management on social media amounted to "conduct which was reprehen- sible given the plaintiff 's position of senior communications manager." To the detriment of the employer, the blog incident was not pleaded in support of an allegation of cause, but rather in re- sponse to the manager's allegations she was terminated suddenly and without cause. While the supervisor claimed she was em- barrassed by the blog post, she did not state the employment relationship could not continue after the blog post. Also at issue was the lack of company policies on social media use and Internet use, and that the manager claimed she never saw an employee handbook. Further, she was "encouraged to be formal when she needed to be" but otherwise her style was casual and informal. While the supervisor claimed the communication style at issue was discussed with the manager, the man- ager insisted, and the court found, that no reasonable notice was given. Specifi cally, the court found that for over a year, no written or oral warning was given to the manager that the impugned social media posts were inappropriate and unac- ceptable and that her employment was in jeopardy should she not cease and desist from such performance. Even more troubling — the manager re- ceived an increase in her compensation and was permitted to continue in her position even after the blog post. For these reasons, the court found the manager never received an "express and clear" warning about her performance re- lating to the social media posts and a rea- sonable opportunity to improve her perfor- mance after warning her. In a diff erent B.C. case, EV Logistics v. Retail Wholesale Union, Local 580 (Dis- charge Grievance) in 2008, the employee was discharged because of his blog which contained violent fantasies and racist com- ments. e blog also identifi ed the com- pany as the blogger's employer. e union argued the postings on the blog occurred entirely off -duty and there was no connection between the business interests of the employer and the employ- ee's conduct. While the arbitrator held that there was a connection between the blogging and the business interests of the company, suf- fi cient mitigating factors existed to justify a reduction in the disciplinary penalty of discharge and the grievor was reinstated without compensation. In the 2007 Chatham-Kent (Municipal- ity) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance), an Ontario employee was dismissed for breach of the confi den- tiality agreement, insubordination and conduct unbefi tting a personal caregiver because of her blog. e employee posted comments about her employer and the con- ditions in the retirement home as well as personal information about the residents in the retirement home without their consent. e union argued the discipline was ex- cessive. But in dismissing the grievance, the arbitrator held that the blog comments were insolent, disrespectful and contemp- tuous of management and were an attempt to undermine management's reputation and authority. e grievor also breached the employer's confi dentiality agreement by disclosing the personal information of residents on a website she created that was accessible by the general public. e framework emerging from the cases reviewed above was confi rmed by the 2010 decision Wasaya Airways LP v. Air Line Pilots Assn., International. An airline pilot with a company owned by a number of First Nations was discharged after posting "ex- tremely serious, off ensive and derogatory comments regarding the company's own- ers and customers" on Facebook. e pilots' union argued the discipline was excessive. e arbitrator cited Chatham-Kent for the proposition that "where the Internet is used to display commentary or opinion, the individual doing so must be assumed to have known that there is potential for virtually worldwide access to those state- ments." e arbitrator concluded that while the grievor's misconduct was deserving of a penalty, the postings were meant to be hu- morous and there were mitigating factors. e arbitrator further noted the grievor would be unable to work eff ectively as a pi- lot with the airline's owners or customers given the nature of the posting and ordered that a four-month suspension with com- pensation be substituted for the discharge, provided the grievor resign. An employer has an interest in "The individual must be assumed to have known that there is potential for virtually worldwide access to those statements." By George Waggott and Chandra Ewing SOCIAL MEDIA FEATURES policies What works best in light of case law? policies What works best in light of case law? policies : POLICY > pg. 37 policies policies policies policies policies

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