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January 22, 2014

Trending: Social Media and Just Cause Dismissal #yourefired

Author Todd Weisberg

Social media is now a reality of everyday life for the average Canadian.  The number of social media outlets has never been higher and now includes: Facebook, Twitter, LinkedIn, Instagram, YouTube, Google+, Tumblr, and blogs. Furthermore, with ever improving smartphone technology, access to these social media outlets has never been more convenient and popular.  The result – employees, now more than ever, have the means to unemployment at their fingertips.   Over the past year, the news has confirmed as much with the number of articles being published about employees being terminated as a result of their use or misuse of social media outlets.
In case you haven’t been following your Twitter feed here is a brief overview of some of the more prominent headlines regarding social media terminations over the past year:  firefighters terminated for tweeting sexist lines from sitcoms; Mr. Lube employee terminated for tweeting a “spliff” request;  Lacoste salesman terminated for posting picture of paycheque on Instagram; KFC employee terminated for posting a picture of her licking food on Facebook; Mr. Big and Tall employee terminated for posting mocking comments on Amanda Todd’s memorial page; and successful human rights complaint brought against fellow employee for calling her a “dirty Mexican” on Facebook.
These articles confirm that all human resources professionals will inevitably be faced with a situation involving an employee and their use or misuse of social media.  The question that naturally arises is:  when does an employee’s social media post amount to just cause for dismissal? 
As with any just cause case, the analysis begins with the test set out in McKinley v. BC Tel, [2001] 2 SCR 161.  Broadly speaking, the McKinley test is based on a contextual analysis of the circumstances to determine whether the disciplinary response of the employer is proportional to the employee’s misconduct.  Each case will turn on its own set of facts.   Traditionally, under the McKinley test, in addition to the severity of the conduct, such factors as the employee’s length of service, past disciplinary record, and the nature of the employee’s position will be included in the analysis of determining whether there is just cause for dismissal.  These factors must also be considered when determining whether there is just cause for an employee’s social media post.  In addition to the traditional factors, the courts have recently outlined a number of additional factors that it will consider when determining whether a social media post amounts to just cause for dismissal.    The following list outlines the factors that courts have considered and should be looked at when assessing an employee’s harmful or offensive social media postings.
Damage Done to the Business – Arguably the most important factor in determining just cause for a social media posting is to look at how damaging the posting was to the employer’s business.  This damage can be accomplished in two ways: 1) the employee directly disparages the employer’s business on social media; or 2) the employee’s actions are of such a nature to cause damage to the employer’s reputation or business interest, for example the health and safety issues that arise from an employee taking pictures of licking food prior to that food being served. 
Damage Done to the Workplace – Another important factor considered in the analysis is how damaging the postings are to the operation of the employer's workplace.  This can occur when postings insult or are disrespectful to fellow employees or management.  In this situation the question that arises is whether the comments are so damaging to the workplace that it would no longer be possible for the employee to work harmoniously and productively with other employees for the company. 
Threatening Nature – Threats against fellow employees or supervisors on social media will be taken more seriously than postings which do not contain threats.  This is especially so with the introduction of Bill 168 which expanded the definition of “workplace violence” to include verbal threats of physical violence and expanded the duties of employers to protect against such workplace violence under the Occupational Health and Safety Act, R.S.O. 1990 c.O.1.  Under Bill 168, employers must respond to any social media posting they become aware of which includes general threats of violence at the workplace or specific threats to other employees.
The Frequency and Duration – The frequency and duration of social media comments will play heavily in determining the amount of damage done to the employer’s business and/or workplace.  For example, where an employee has launched a year-long Facebook campaign against his employer, the likelihood of causing damage to the employer increases along with the likelihood that the postings will amount to just cause for dismissal.   On the other hand, a single post deleted shortly thereafter will be less likely cause damage and therefore less likely to amount to just cause for dismissal. 
Uncooperative or Defiant –  Where an employee is asked to stop making posts or a request is made for that employee to remove a post, by their employer or fellow employee, but does not do so, is a factor in favour of finding just cause for the dismissal.  As a result, one of the first steps for any human resources professional faced with a harmful post is to ask the employee to remove said post.
Honesty and Remorse – An employee who accepts responsibility, shows remorse and offers a sincere apology for the social media posting is less likely to be found to have been terminated for just cause.  Similarly, where an employee is dishonest about the posting, does not show remorse and/or refuses to apologize, that employee will be more susceptible to a finding of just cause for their dismissal. 
Provocation – Inappropriate behaviour by a manager or supervisor which incites, in whole or in part, the misconduct of the employee will be considered a significant mitigating factor against a finding of just cause for the dismissal.  It’s important to note that this factor will only apply where the posting is found to have been a reaction to such inappropriate behaviour. 
Disclosure of Confidential Information – A social media posting that discloses confidential or sensitive business information will weigh in favour of a finding of just cause for the dismissal.
During Working Hours – Whether an employee is using company time or personal time for their social media post will also play a role in determining whether there is just cause for dismissal.
These factors indicate the importance that context plays in all terminations for just cause, especially those involving social media.  When faced with an offensive or harmful social media posting, human resources professionals must carefully consider the circumstances that gave rise to the posting, the nature and severity of the posting, and the employee’s conduct following the discovery of the posting.  Additionally, it is recommended that the human resource professionals consult with legal counsel before deciding to terminate an employee for cause as a result of a social media posting.
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