As technology continues to evolve, issues relating to the intersection of social networking sites and the workplace are becoming more prevalent. Last month, in Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (B.C. L.R.B.) [“West Coast Mazda”] the British Columbia Labour Relations Board upheld the dismissal of two employees for comments that they made on their Facebook pages. While previous decisions have considered the dismissal of employees due to comments made on blogs and online message boards, this decision is the first in Canada to consider an instance of employees dismissed for Facebook comments. The decision confirms the emerging view that an employee’s online activities, where they are specifically connected to the workplace, can result in significant harm to the employer and may appropriately give rise to a disciplinary response.

THE DECISION IN WEST COAST MAZDA

In West Coast Mazda, two employees, identified only as J.T. and A.P., worked at West Coast Mazda in Pitt Meadows, British Columbia. Both employees had Facebook accounts connecting them to hundreds of “friends”. Among these “friends” were current and former employees of West Coast Mazda, including their manager, identified as F.Y. F.Y. noticed a post on J.T.’s Facebook page that read:

F.Y. was concerned that this message indicated that J.T. had damaged company property or was planning to do so. He brought the post to the attention of another manager and they decided to monitor J.T.’s account. At no time did they tell J.T. that they were monitoring his account or raise their concerns with him. A few weeks after F.Y. began monitoring J.T.’s Facebook account, J.T. removed F.Y. as a Facebook “friend”. However, F.Y. continued to monitor his activities using someone else’s Facebook account.

Over time, J.T.’s posts became more aggressive and escalated to homophobic slurs as well as threats towards F.Y. and other managers. J.T’s posts specifically identified West Coast Mazda as his employer and made derogatory comments regarding West Coast Mazda.

While A.P. was not as active on Facebook at J.T., he too made several negative posts regarding his employer. One post read in part, “west coast detail and accessory is a…joke…dont spend your money there as they are…crooks and are out to hose you…”

Following this post, F.Y. brought J.T. and A.P.’s Facebook activity to the attention of the owners of West Coast Mazda. J.T. and A.P. were called into separate investigatory meetings and asked whether they had made inappropriate comments on Facebook. Both denied it. When confronted with the evidence, both denied that they were the ones to make the comments from their account.

The employees were dismissed for making disrespectful, damaging and derogatory comments on Facebook that amounted to insubordination, created a hostile work environment for co-workers and supervisors, and negatively affected the reputation and business interests of the employer.

The British Columbia Labour Board found that, despite their denials to their employer, the employees were responsible for the comments on their Facebook pages. Furthermore, the employees did not have a serious expectation of privacy over the content of their Facebook pages because of the number of people who had access to the accounts. The Board rejected the Union’s submission that the inappropriate posts were similar to comments regularly made on the shop floor. The Board found that the employees’ comments were damaging to the employer’s business. Moreover, the comments included offensive, insulting and disrespectful comments about supervisors or managers that amounted to insubordination. Additionally, the Board considered the fact that employees had been dishonest when confronted by the employer regarding their Facebook posts. The Board held that the penalty of dismissal was not out of proportion with the misconduct and that there was proper cause for the decision to terminate both employees’ employment.

5 TIPS FOR MANAGING EMPLOYEES IN THE AGE OF SOCIAL NETWORKING SITES (“SNS”)

1. Consider blocking social networking sites. Some employees may be wasting an inordinate amount of time social networking at work. Blocking SNS in the workplace could improve those employees’ productivity. However, remember that methods for wasting time online are infinite and that blocking SNS is not a panacea solution for the misuse of time. Also, importantly, blocking SNS at work does nothing to address employees’ off duty conduct.

2. Develop a clear and comprehensive policy. Ensure your computer and internet use policy is updated to regulate the use of SNS. A clear policy is critical both in terms of communicating your expectations to employees and in terms of upholding discipline for electronic misconduct.

3. Address privacy concerns. You may wish to monitor employees’ SNS activity, but remember that the surveillance of employees can in some circumstances result in breached privacy obligations. Consider adding to your policy a warning that employees have no expectation of privacy in the workplace including in the use of work computers as well as a notification that the employer monitors SNS.

4. Address Off-Duty Conduct. Ensure that your policy on computer and internet use addresses the use of SNS during non-work hours. Include the caution that SNS activity that breaches the employees’ duty of loyalty, constitutes insubordination, or damages the employer’s business interests or reputation may result in discipline.

5. Promote SNS Best Practices. It is likely impossible to prevent employees from social networking. Employers may wish to promoting social networking best practices that minimize the risk of damage from employee SNS activities. Best practices might include employees refraining from making comments related to their employment on SNS, choosing not to list their employer on SNS, and activating Facebook privacy settings.

We encourage you to contact your Shields O’Donnell MacKillop lawyer if you have any questions about electronic misconduct or social media in the workplace or need assistance in drafting an effective computer use policy.