Canada: Facing Discipline For Facebook Postings

Edited by Jennifer M. Fantini and Naomi E. Calla

More than ever, Facebook and other social media networks serve as a means of communication and a source of information. However, two recent decisions show that these networks can also serve as mediums for off-duty misconduct and that their misuse by employees can lead to disciplinary action. A posting on a Facebook page that harms the reputation of an employer may be grounds for discipline. Although the poster may have a perceived sense of privacy, this perception may not justify one's conduct online.

One of the first clear analyses relating to termination of employees for a post on Facebook was provided by the British Columbia Labour Relations Board (the "Board").

In United Food and Commercial Workers International Union, Local 1518 v. Lougheed Imports Ltd. ("Lougheed Imports"), two employees of an automobile dealing and accessory shop were terminated for posting offensive statements about their employer on their Facebook accounts.1

The posts included homophobic comments, angry status updates and violent statements regarding management figures. The postings named the employers, called them crooks and warned the public not to spend their money at the shop.

During the employer's investigation, the employees did not accept responsibility for their misconduct. One of the employees alleged that comments were not made by him at all and were the result of another party hacking into his Facebook account. The employer terminated the employment of both employees for cause.

The Union filed complaints with the Board and argued that the dismissals were motivated by anti-union animus and constituted an unfair labour practice. Moreover, the union argued that the Facebook comments did not irreparably sever the employment relationship and as such, did not justify termination.

The Board found, as a preliminary matter, that because the comments were published on Facebook and were accessible to hundreds of "Facebook friends", there was no expectation of privacy. The Board held that the comments about management amounted to insubordination. Moreover, the Board concluded that the nature of the comments constituted "egregious" misconduct and justified termination.

The analysis of the Board in Lougheed Imports was applied in Wasaya Airways LP and Air Line Pilots Association International, to determine whether a unionized employer had just cause to terminate a pilot for comments he made on Facebook.2

The employer was an airline owned and operated by First Nations communities. The employer dismissed the pilot after he posted derogatory comments with racial undertones. The comments were not explicit to First Nations people nor did they identify the pilot or his employer. It was, however, discernible that the pilot worked for an airline and that he had experience with First Nations people. A co-worker, who was "Facebook friends" with the pilot replied to the posts with his own disparaging remarks.

The pilot took responsibility for the posts and provided a written apology. The pilot was, nevertheless, terminated and his co-worker was disciplined.

The Union argued that while discipline may be warranted, termination was excessive in this case. The employer had no specific policy with respect to an employee's use of Facebook or other social media. The employer did, however, have a mission statement that embraced First Nations values and its commitment to serving that community.

The Arbitrator agreed with the Union that the penalty of termination was excessive. However, the Arbitrator found that based on the mission statement of the company, the Facebook posts were harmful to the employer's reputation. Given the employer's intention to not work with the pilot again, the Arbitrator substituted the penalty of a three month deemed suspension (with pay and benefits), following which the pilot was to resign from the company.

These two recent decisions provide several factors for analyzing when an employer can discipline an employee for posts on publicly accessible websites such as Facebook:

  • In both cases, the decision makers rejected that use of Facebook was akin to a private discussion amongst friends and instead determined that it was public. As such, the defense of a perceived sense of privacy may no longer be viable in cases where the employee's posts are available to many "Facebook friends".
  • In both cases, the decision makers considered the cooperation and honesty of the employee during the investigation to justify the maintenance or substitution of discipline.
  • If the employee admitted his misconduct and provided an apology, the decision maker seemed more likely to lessen the penalty imposed by the employer. In both cases, the decision makers assessed whether the employer had a policy with respect to employee use of Facebook or other social media. The absence of such a policy may mitigate against harsher disciplinary action.
  • In both cases, the decision makers assessed the extent to which the comments referenced and damaged the reputation of the employer.

Discipline, and even termination, may be justified for Facebook postings as they are public comments with potentially detrimental effects for employers.

Employers should consider implementing a social media policy and training staff on the acceptable use of public forums such as Facebook so as to avoid the situations in the above-noted decisions. While termination is now a justified disciplinary action for off-duty misconduct through social media, employers may also wish to work with employees to remove the inappropriate comment(s) from Facebook or other social networks before resorting to termination.

Footnotes

1 [2010] BCLRBD No 190 (QL).

2 [2010] CLAD No. 297 (QL).

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Parisa Nikfarjam, Student-at-Law
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.