THE EMPLOYERS' EDGE
At our recent CCP Labour and Employment Law Forum, the use of social media in the workplace was a real hot-button issue. Indeed, with the pervasive influence of the Internet and social media in modern society, it is no surprise that issues have arisen in the workplace surrounding the appropriate use of the Internet and social networking tools.
While inappropriate use of employer resources is generally cause for discipline, it can be difficult to define where and when appropriate personal use crosses the line into misconduct worthy of discipline. However, there is a case from British Columbia that some legal scholars are calling the first “Facebook firings” in Canada.
West Coast Mazda
Evidence gathered from the Internet and/or an employee’s Facebook page(s) has factored into some disciplinary decisions before, but in United Food and Commerical Workers International Union, Local 1518 v. Lougheed Imports Ltd. (c.o.b. West Coast Mazda) the British Columbia Labour Relations Board upheld the employer’s decision to discharge two employees based solely on their Facebook postings. What makes this case even more interesting and unique is that it took place in the context of a union organizing campaign, and of course the two employees in question were fervent union supporters.
West Coast Mazda is an auto detailing and accessory shop in Pitt Meadows, British Columbia; “J.T.” and “A.P.” were both known by the employer to be supporters of the certification application filed by the U.F.C.W. at the end of August, 2010. However, shortly after the certification application was filed, J.T.’s manager was concerned by the somewhat threatening nature of a posting on J.T.’s Facebook page, which he discovered in the normal course as the manager was “friends” with J.T. on Facebook. The manager informed a more senior manager, but nothing was done.
Subsequently, in separate postings in September J.T. posted various work-related remarks, including a remark about “unfair labour practices coupled with workplace harassment…”, and a rhetorical question: “If somebody mentally attacks you, and you stab him in the face 14 or 16 times… that constitutes self-defence doesn’t it????”. The same manager again mentioned these postings to his senior manager, who was not sure what should be done; The manager also enlisted the help of a former employee to help monitor J.T.’s postings, as the manager had been removed from J.T.’s “friends” list on Facebook and could no longer access his postings.
At the end of September, A.P. also posted a negative comment on Facebook, alleging that West Coast Mazda’s business “is a f**kin joke...”, and that management/ownership was “… a bunch of greedy low life scumbags”.
Finally, on October 1, 2010, J.T. posted that he was “feeling tactical, and vengeful, and retaliatory.” At this point the manager and senior manager involved the owner of West Coast Mazda, and they consulted legal counsel as to how to deal with this matter. The employees were then interviewed on October 6, 2010 – with their Union present – and given a chance to explain the postings; however, both J.T. and A.P. denied actually posting the remarks.
In her decision, Vice-Chair Allison Matacheskie found that the employer was justified in terminating both employees’ employment: in J.T.’s case due to the serious, offensive and sometimes-threatening nature of his postings coupled with dishonesty about his misconduct, and in A.P.’s case because his comments specifically named his own employer and encouraged people not to spend money there, along with his dishonesty about the misconduct.
It is interesting to note that these terminations were upheld despite the fact that the employees were never warned or even approached about their Facebook postings before the disciplinary interviews of October 6, 2010 even though the employer had been monitoring at least J.T.’s Facebook activity for over a month. In addressing that objection from the U.F.C.W., Vice-Chair Matacheskie determined that the employer’s evidence that it did not know how to handle this novel situation was credible and that the conduct of the two employees therefore justified their terminations, especially given their dishonesty when confronted with the Facebook evidence.
The Importance of Technology Use Policies
Whether an employer allows access to the web at work or not, there should be an explicit, written policy outlining acceptable and unacceptable technology use. Employers have an obligation to ensure that the workplace is free from harassment and should ensure that their anti-harassment policies extend to email and the internet, both in and outside of the workplace. Such policies commonly emphasize that confidentiality or non-disclosure agreements apply to the internet, prohibit the posting of derogatory comments about co-workers or management, state that anonymity will not protect an employee who violates the policy, and outline specific consequences for breach of the policy. The policies must also be applied and enforced equally across the organization.
A code of conduct outlining permissible and prohibited use of the company’s e-mail (work or personal) social networking sites (like Facebook, Myspace and Twitter), and social media sites (like YouTube), will promote productivity and discourage potentially damaging online misconduct. Employers who fail to take steps to prevent misconduct by their employees risk exposure to human rights complaints, Occupational Health and Safety Act charges relating to workplace violence and harassment and possibly vicarious liability for civil claims (e.g. defamation).
CCP can assist employers in developing and implementing the types of policies necessary for a safe and productive workplace that embraces and encourages the use of today’s rapidly expanding social networking options for both the employer and employees.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.