If a friend or family member makes inappropriate or harassing comments about an employer or other employees on social media, can the employer hold the employee responsible?
Question: If an employee’s friend or family member makes inappropriate or harassing comments about an employer or other employees on social media, can the employer hold the employee responsible?
Answer: It is well-established that an employee who makes offensive, derogatory or harassing comments on social media about their employer or co-workers can be subject to disciplinary action and, in some cases, dismissal.
Making disparaging comments publicly about one’s employer will often breach the duty of loyalty inherent in the employment relationship. Relevant factors may include the content of the remarks, the confidentiality of the information that was disclosed, the nature and extent to which the comments were made public, whether the statements were true or false, the extent to which the employer's reputation was damaged or jeopardized, the impact of the criticism on the employer's ability to conduct its business, and the interest of the public in having the information made public: British Columbia (Attorney General) v. B.C. G.E.U.
In Camosun College v. C.U.P.E., Local 2081, the arbitrator ruled that in some circumstances, an employee is under a broader civic obligation to make public statements which are plainly against the employer's interests. The duty of fidelity does not compel an employee to keep quiet in the face of wrongdoing in the workplace. However, employees are not free to act on mere suspicions. Before making public allegations of misconduct, the employee is under an obligation to investigate and verify the concerns as far as possible. The employee is also obliged to take every reasonable opportunity to correct the concerns within the organization before taking them public.
Commenting negatively on social media about managers or co-workers can be a breach of an employee’s obligation to refrain from engaging in workplace bullying and harassment. Where a complaint about such behavior is made, the employer will have a duty to investigate and take reasonable steps to ensure it is providing a safe workplace.
The situation is more difficult, however, where derogatory or harassing comments that appear on social media are not made by an employee, but by an external third party. If the third party is an employee’s friend or family member, the employer may be able to establish through investigation that the employee was behind the comments, in which case disciplinary action or even discharge may be appropriate. But if a connection to the employee cannot be established, the employer will need to look to other means to protect its business and workforce.
Depending on the circumstances, this may include threatening or commencing an action for defamation, seeking an injunction, reporting the matter to the police, asking the social media host to take down the offending post, or blocking emails from specified accounts. However, before an employer takes these steps, it is often advisable to consider whether actively engaging with the third party is going to have the desired effect, or whether it may simply result in an escalation of the offending behaviour.
For more information see:
• British Columbia (Attorney General) v. B.C.G.E.U., 1981 CarswellBC 1176 (B.C. Arb.).
• Camosun College v. C.U.P.E., Local 2081, 1999 CarswellBC 4507 (B.C. Arb.).
Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected].
