As Facebook's popularity continues to grow, so too do the consequences of its misuse by employees. This is highlighted by two recent arbitral decisions in which terminations were upheld on the basis of content posted on Facebook by employees while off-duty.
Off-Duty Misconduct
In Lougheed Imports Ltd. (c.o.b. West Coast Mazda),1 the manager of West Coast Mazda had viewed numerous Facebook postings that he believed were damaging to the company and insulting and disrespectful to supervisors and managers. The comments had been posted by two other employees of the company who were listed as the manager's "friends" on Facebook and thus open for the manager and others to view. The employees were fired based on these postings.
The terminations were challenged by the employees' union on the basis that the dismissals had been, in part, motivated by anti-union animus. The terminations were upheld at arbitration on the basis that the comments were offensive, egregious and should be treated as comments made on the "shop floor." Specifically, the British Columbia Labour Relations Board noted that one of the comments posted on Facebook explicitly named the company and attempted to encourage people not to spend money at West Coast Mazda. The comments were also found to have "ridiculed the managers and supervisors" to a degree that supported cause for their termination.
Similarly, in Re Wasaya Airways LP and Air Line Pilots Association, International (Wyndels),2 the company terminated one of its pilots because of a comment posted on his Facebook "wall." Wasaya Airways is a company owned by a First Nations community that serves primarily First Nations communities, and the posted comment disparaged First Nations communities and the company. The termination was upheld at arbitration. The arbitrator's decision focused on the finding that the grievor's actions constituted off-duty misconduct that posed a potential harm to the company's reputation and ability to carry out its business.
Work-Related Postings and their Consequences
These decisions make it clear that personal, off-duty comments made by an employee that become public can be acted upon by his or her employer. Such misconduct can have a direct impact on workplace relationships, particularly when the comments are detrimental to the company's business or undermine the authority of management. In addition, comments that in and of themselves constitute harassment or insubordination can lead to discipline.
In light of renewed emphasis on preventing workplace harassment and violence, employers cannot ignore issues of workplace bullying even when they take place on Facebook, on other social networking websites, off the shop floor or outside the office.
There are several proactive measures an employer can take in light of the potential liabilities associated with employee use of Facebook or similar social network sites. Through properly drafted company policies, employers are permitted to establish rules to regulate employee behaviour, including the use of social networking websites on and off company premises. This includes reminding employees that such off-duty conduct can be the subject of discipline and discharge when such conduct affects the company and/or co-workers. Furthermore, company policies and training on workplace violence and harassment prevention should include prohibitions on improper social media conduct. Commentary made by individuals on Facebook, when disclosed or accessible to others or the public, may not be considered private and can be subject to a complaint and an investigation where the content involves the harassment or bullying of other employees.
The legal issues arising from the use of social networking websites are becoming increasingly prevalent. It is essential to confront these potential liabilities proactively before they negatively affect your workplace.
Footnote
1. [2010] B.C.L.R.B.D. No. 190.
2. (2010), 195 L.A.C. (4th) 1.
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