Last month, the British Columbia Labour Relations Board upheld the dismissals of two employees for comments that they made on their Facebook pages. The decision 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.) is the first know case dealing specifically with a dismissal because of comments made on Facebook. The B.C. Labour Board’s decision is important for employers because as technology continues to evolve, this type of problem will become more prevalent in Canadian workplaces. The Labour Board’s decision confirmed the developing principle from similar cases (involving blogs and online message boards) that online comments made by an employee about their workplace, co-workers, or bosses can harm the employer and are an appropriate target for disciplinary action, even if the comments were made from the employee’s home and on their own time.
THE FACTS
Two employees, identified only as J.T. and A.P., worked at West Coast Madza in Pitt Meadows, B.C. Both employees had Facebook accounts with hundreds of friends. Among thse friends were current and former employees of West Coast Mazda, including their manager F.Y. The employees at West Coast Mazda were in the process of organizing a union and both J.T. and A.P. were involved. On August 27, 2010, the employer received notice of the employees’ application for certification of a bargaining unit. The unit was ultimately certified on September 8.
On August 27, the same day that the employer received the notice of the application to form a bargaining unit, he noticed a comment on J.T.’s Facebook page that read, “Sometimes you have good smooth days, when nobodys [messing] with your ability to earn a living…and sometimes accidents DO happen, its unfortunate, but thats why there called accidents right?”
F.Y. was concerned that this message indicated that J.T. had damaged company property or was planning to do so. He along, with another manager, decided that they should monitor J.T.’s account. At no time did they tell J.T. that they were monitoring his account or bring up their concerns with him.
Over time, J.T.’s posts became more aggressive and escalated to homophobic slurs and threats towards F.Y. and other managers, identified the employer and told people not to shop there, and told people to shop at a competitor. While J.T. removed F.Y. as a Facebook friend, F.Y. continued to monitor him using someone else’s account.
While A.P. was not as active on Facebook at J.T., the one negative post about his employer 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…” A.P. apologized for this post the next day and deleted his account.
J.T.’s negative comments toward his employer continued until October 6, when 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 fired for the Facebook posts and for their denials during the interview. The termination letters indicated that the comments were disrespectful, damaging and derogatory, they affected the employer’s reputation and business interests, and they created a hostile work environment.
ARGUMENTS OF THE PARTIES
Both J.T. and A.P. challenged the dismissals arguing that their dismissal was motivated by anti-union animus because they were both supportive of the new union. They argued that the employer monitored the Facebook accounts from August 27-October 6 without expressing any concerns to them and that the comments were no different that the homophobic or racist comments made on the shop floor, which the employer tolerates.
The employer argued that the comments were insubordinate and were intended to undermine the managers and the employer. They relied upon the fact that other employees were Facebook friends with the pair and would have seen the comments. They also argued that there was no anti-union animus and that the delay was because the employer had never dealt with a situation like this before involving Facebook comments and was not sure how to react. It was not until the comments became intolerable that they took action and fired the pair.
FINDINGS
The Labour Board found that, despite their denials to their employer, the employees had made the comments on their Facebook pages and did not have a serious expectation of privacy because of the number of people who had access to their accounts. The Board found that the comments were derogatory, insulting and damaging to the employer’s business and not the same type as those normally made on the shop floor. The Board also held that employer’s explanation for the delay was believable and that there was no evidence of anti-union animus. Most importantly, the Board held that even though there was not a workplace policy about Facebook, the comments were so offensive and egregious that they constituted just cause for termination. The terminations were upheld and the action was dismissed.
WHAT EMPLOYERS SHOULD KNOW
• Comments made by employees on their social networking accounts can seriously harm the reputations and business interests of the employer.
• While this is a serious case of employee misconduct, where the offence is less obvious, having a clear written policy about what constitutes misuse of technology improves the ability of an employer to justify discipline.
• Be aware of privacy legislation when monitoring employees.
• A policy on Internet and e-mail use should set out the expectations of the employer, establish consequences for misuse, and address any privacy issues.
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.