THE EMPLOYERS' EDGE
Social Networking Trips Up Another Employee: Discharge Upheld for Gross Insubordination and Threats Made by Postal Employee in Facebook Posts
Practice Areas:
Labour Relations
It appears that employees, in general, still do not appreciate the juxtaposition of the digital age with respect to employment: while social networking and the Internet can provide instant gratification and provide some stress relief at the expense of your employer, they can also open the door for permanent consequences. While you may remember a CCP blog in November detailing the affirmation of a discharge for offensive Facebook posting in British Columbia, it would appear that not everyone is aware of the developing law in this area. A postal clerk with 31 years’ experience was the latest to learn this lesson when her discharge from Canada Post was upheld at arbitration.
In the recently reported case Canada Post Corp. v. Canadian Union of Postal Workers [2012] C.L.A.D. No. 85, the Grievor was discharged on the basis of a number of different postings to her Facebook account, even though she thought her Facebook account was private. Upon being informed by one of the Grievor’s co-workers of the disturbing and offensive posts, management was able to access the Grievor’s Facebook profile and see all of the posts the Grievor had made. Canada Post determined that the postings were inappropriate, threatening and bullying in nature; given the public nature of the postings and the lack of remorse or repentance from the Grievor, Canada Post terminated her employment.
In reviewing the evidence, Arbitrator Ponak found that the postings were “universally nasty in tone and content”, with the majority aimed at the superintendent of the postal outlet at which she worked. Acknowledging the emerging case law that has established that employees can be disciplined for their comments and electronic postings where they are “publicly disseminated and destructive of workplace relationships”, Arbitrator Ponak stated that the only question was whether the current circumstances warranted the harsh penalty of discharge.
In deciding to uphold Canada Post’s discharge of the Grievor despite her long service and lack of significant prior discipline, Arbitrator Ponak found that the posts were “offensive and frightening” and went beyond general criticism of management to the targeting and threatening of an identifiable manager. It was also significant that the postings were not a momentary lapse but took place over more than a month on multiple days, and that the discovery of the postings caused actual damage and harm to the targeted managers in having to take stress leave from their own jobs.
It is also interesting to note that aside from the public access to the Grievor’s Facebook profile bringing her comments into the public sphere, Arbitrator Ponak also found the Grievor’s behaviour to be worthy of the discipline because the postings were “brought…directly into the workplace”, by the Grievor sharing her comments knowingly with current and former co-workers as her Facebook “friends”. Arbitrator Ponak commented on the “growing controversy over Facebook privacy” and added that the reckless nature of sharing her comments with co-workers “greatly increased the likelihood that her postings would be eventually discovered by management.”
This decision represents another step in the regulation of employee “off-duty” conduct in the ever-expanding social media sphere. It is an affirmation of the employer’s right to discipline and curb insubordination. It should also serve as a caution to employers and employees alike that immediacy and permanence are not mutually exclusive in the new digital age. The lawyers at CCP can assist employers in managing difficult disciplinary issues and provide advice on whether certain behaviour warrants a dismissal for cause.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.