February 27, 2015
We wrote last year about some of the factors to consider if you have to decide whether to fire an employee for his or her social media activity. Recall from our previous post that some of the factors that arbitrators consider when assessing terminations for social media include:
- Damage to the business (including reputational damage)
- Damage to the operation of the workplace
- Whether the posts constituted threats
- Frequency and duration of inappropriate posts
- Uncooperativeness or defiance when confronted
- Honesty or remorse
- Whether the posts were provoked by a superior
- Whether the posts disclose confidential information
- Whether the posts were made during working hours
In the year since our last post, there have been a number of new high-profile arbitration decisions on the subject, and the British Columbia Supreme Court released the first Canadian court decision regarding termination for social media posts. These decisions have shed additional light on the relevance of the above factors to just cause terminations for social media posts.
Many of the above factors have their roots in Millhaven Fibres Ltd v. Atomic Workers Int'l Union, Local 9-670, which is a 1967 arbitration decision regarding the use of employee conduct outside of work to justify termination for cause.
The Millhaven factors were considered by an Ontario arbitrator in Toronto (City) v. Toronto Professional Fire Fighters’ Association, Local 3888 (Bowman Grievance) in upholding the termination of a firefighter for Facebook posts. The firefighter, Bowman, posted a number of sexist, racist and otherwise offensive tweets, some of which were reported by the National Post and then received widespread media coverage. The employer found out about the tweets from the National Post story, and after an investigation, fired him for cause due to the damage to its reputation caused by the tweets as well as the fact that the tweets violated various employer policies, including its social media policy. The arbitrator agreed with the employer’s reasons in upholding the discharge, and also noted both that the tweets were extremely offensive and that the grievor did not show appropriate remorse. This case reinforces that employers should consider instituting social media policies both to discourage employees from inappropriate behaviour that reflects badly on the employer, and, if employees do misbehave on social media, to rely on as cause for termination.
In another arbitration decision involving a Toronto firefighter, Toronto (City) v. Toronto Professional Fire Fighters’ Association, Local 3888 (Edwards Grievance), an arbitrator overturned a termination for social media conduct. Edwards, the firefighter in this case, posted a sexist tweet, which was discussed in the same National Post article as Bowman’s tweets. Despite being inappropriate, Edwards’ tweet was not as offensive as Bowman’s tweets, and Edwards’ tweet was an isolated event. The arbitrator considered both of those facts, as well as other factors including that Edwards had a clean disciplinary record and that he repeatedly apologized, in reinstating Edwards and substituting a three-day suspension for the termination.
The British Columbia Supreme Court decision, Kim v. International Triathlon Union, involved a communications director who posted a number of inappropriate tweets and Facebook posts which reflected badly on the employer, as well as a blog post in which she compared her manager to her abusive mother. She was never warned about her social media activity, but was fired. The employer had merely told that her communication style was not in line with its own. In overturning the termination and awarding damages for wrongful dismissal, the Court focused on the long-established principle of “cumulative cause”, whereby employers may discharge employees for ongoing bad behaviour if they first provide formal warnings stating that such behaviour is unacceptable. The principle is generally relied on where no single act of misconduct by the employee is sufficient to establish just cause for termination. The Court held that there was not just cause for termination despite that the employee’s job entailed communications on behalf of the employer, including on social media.
The Kim decision suggests that courts may not be as willing as arbitrators to modify existing legal tests to the unique circumstances of social media. It is important to note that this decision is not binding on other provinces’ courts; however, as it is the only current Canadian court decision on the subject, it is likely to be very persuasive in future cases.
Despite that the Kim decision did not address the factors listed at the beginning of this article in the same way as many arbitration decisions, those factors remain relevant for determining whether to discharge any employee for social media activity. The severity of offensive or inappropriate posts depends on those factors, and at least some of those factors are therefore likely to be considered in wrongful dismissal cases before both courts and arbitrators. An important lesson to be drawn from Kim, however, is that if you learn about an employee’s inappropriate social media behaviour but do not think it is severe enough to warrant termination, you should issue a formal warning, just as you should for other misconduct. That way, if he or she repeats that behaviour and you eventually terminate his or her employment, you can rely on the previous misconduct in support of the termination.
These new cases regarding termination for social media posts demonstrate that this area of the law is still developing, but it remains clear that despite the unique nature of social media, courts and arbitrators do not consider employee misconduct on social media to be all that different from other forms of employee misconduct. Existing tests such as cumulative cause and the Millhaven test for off-duty misconduct should therefore be considered anytime you have to decide whether or not you have just cause to discharge employees for social media activity.