Employees making inappropriate comments online while away from work
Question: Does an employer have the right to discipline an employee for making insulting remarks about a customer or client on the employee’s personal social media page?
Answer: Off-duty social media and Internet postings by employees may warrant discipline in some circumstances, and summary dismissal in exceptional cases.
While an employer cannot discipline an employee for off-duty behaviour that does not relate to or interfere with the employer’s business, it is an implied term of the employment relationship that an employee will not engage in conduct that is prejudicial to the employer’s interests or reputation. Negative comments about an employer’s customers or clients, posted on social media where they may be viewed by many people, can be damaging to the employer’s business and reputation, and warrant discipline.
The severity of the discipline is determined using a contextual analysis, taking into account the nature of the employee’s position and job duties, the employer’s expectation, the nature and seriousness of the employee’s conduct and the impact that the conduct has upon the business of the employer. In Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, the British Columbia labour arbitrator found that an employee’s misconduct, which consisted of a brief but offensive campaign on his personal Facebook page criticizing the employer, the employer’s customer and a supervisor, warranted discipline but did not justify summary dismissal, considering the employee’s clean disciplinary record, his apology and remorse.
More severe discipline may be justified where the employee is in a position of trust, holds sensitive information about customers or clients, or occupies a senior position where she is regarded as the employer’s direct representative. The nature of the insult must also be taken into account. For instance, in Wasaya Airways LP v A.L.P.A., an arbitrator found that the employer had sufficient cause to dismiss the employee for posting damaging remarks about the employer’s customers on Facebook, where the remarks were disrespectful to First Nations people, and the majority of the employer’s customers and stakeholders were First Nations people. The arbitrator found that the Facebook posts were damaging to the employer and had poisoned the employment relationship to such an extent that it could not continue.
While it is an implied term of the employment contract that the employee must not engage in activities prejudicial to the employer’s reputation, insulting remarks on personal social media about the employer’s customers may justify discipline even in the absence of any policies on social media usage. It would still be prudent for employers to have written policies on social media conduct which clearly set out the employer’s expectations and specifies the disciplinary measures in the event of a policy breach.
For more information see:
• Rocky Credit Union Ltd. v. Higginson, 1995 CarswellAlta 90 (Alta. C.A.).
• Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, 2015 CarswellBC 2277 (B.C. Arb.).
• Wasaya Airways LP v A.L.P.A., 2010 CarswellNat 6233 (Can. Arb.).