Employee wrongfully dismissed for social media postings

International organization had serious concerns over employee’s social media use and attitude but never officially warned her until her dismissal

Just cause for dismissal can be difficult for employers to prove, as courts and arbitrators will generally lean in favour of the employee, who is seen to be on the weaker side of a power imbalance of the employment relationship. Employees are generally seen to be more dependent on their jobs for reasons of financial support and identity, so it’s a serious situation if they lose those jobs. So to terminate employment without giving reasonable notice or pay in lieu thereof, there needs to be proof of serious misconduct – and an opportunity for the employees to resolve the issues that put their employment in jeopardy in the first place.

Giving employees a chance to fix things is a key element of just cause. The concept of progressive discipline – where an employee receives a series of warnings and guidance to help them improve and potentially save her job – is commonly accepted in employment law. If an employee is terminated for reasons that are a complete surprise to her, then there’s a chance the termination might not sticek – or at least just cause won’t.

A British Columbia employer wrongfully dismissed an employee it fired for inappropriate social media activity, the British Columbia Supreme Court has ruled.

Paula Kim, 34, was hired by the International Triathlon Union (ITU), the international governing body for triathlon competition based in Vancouver, in 2006 to be a media liason. She wrote press releases, athlete biographies, web stories and the ITU newsletter. Though Kim enjoyed working in the sports industry, the hours were long and more stressful than her previous work with a cable television network and a professional sports franchise.

The working environment at ITU was casual and Kim got along well with people. She claims there was no official social media policy, so she didn’t worry about her own social media sites and a personal blog that was separate from the ITU operations.

Kim left her position in February 2009 to seek another opportunity. She left ITU on good terms and in late 2010, after she had left the newer job, she began doing contract work for ITU. In January 2011 ITU hired Kim full-time as the senior manager of communications. The position was similar to her previous ITU job but with a new title and more responsibility, reporting directly to ITU’s secretary general. There was no written employment agreement.

When Kim returned to ITU, she found the workplace to have the same casual atmosphere where employees gossiped about athletes, other federations and general topics. She was encouraged to be formal when necessary, but she was usually casual on a regular basis. Kim didn’t have any formal performance reviews and no-one spoke to her about any issues, so she assumed ITU was happy with the job she was doing.

Kim had two Twitter accounts, one personal and the other where she identified herself as an employee of ITU. She also had a personal Facebook page — with several ITU employees as friends — and a personal blog page. Kim claimed the secretary general asked her to remove any reference to ITU in her personal Twitter handle and she would be free to say what she wanted.

Kim had a good relationship with her boss, the secretary general, other than a disagreement over the work performance of another ITU employee in August 2011, another over the front page of the ITU website, and one occasion where the secretary general emailed her to say she wasn’t comfortable with the language Kim was using in her emails to her. Kim felt their disagreements were related to their best intentions for ITU and they always resolved them.

Disagreement over paid vacation time

In early 2012, Kim felt she had reached an agreement with the secretary general that she could take all of her vacation in November and December, as she had done in 2011 — which with her working some weekends would give her two full months of paid vacation. Her boss wanted to keep the arrangement between them, so Kim didn’t officially request it. However, in September, Kim received an email about formalizing the time off, suggesting she would take one month with pay and one without. Kim responded that this was not the arrangement agreed upon. She was upset and said “I’ve given my entire year and my sanity to ITU and suddenly this is an issue.”

The secretary general then told Kim she had to be in the office as much as possible in November and December, which surprised Kim because there weren’t any events scheduled and the big ITU congress would be over. This further discouraged and disappointed Kim. The secretary general denied approving two months of paid vacation, saying she only wanted the fact Kim was taking leave between them so other staff wouldn’t find out and said Kim had to set up her leave arrangement with the payroll supervisor.

On Oct. 5, Kim, upset over the vacation issue, wrote an emotional blog on her personal blog page. In the blog, Kim compared the secretary general’s actions regarding her vacation to her abusive mother who had made her feel terrible growing up. Kim wrote in the blog “sometimes people are just evil pieces of s--- and just need to bring you down to make themselves more powerful or better than you.” She concluded by saying that “thanks to my current boss…my spirit is broken.”

Kim said mostly friends and family visited her blog, but a few ITU staff members alerted the secretary general to Kim’s blog. When she read it, the secretary general was shaken and felt embarrassed. ITU was embarrassed about this type of communication coming from the senior communications manager, especially since the ITU congress was about to start in New Zealand. Other directors and officers at the congress mentioned the blog to the secretary general.

On Oct. 23, Kim posted on her personal Facebook account following the world championships “2012 ITU season…DONE. Now leave me alone until 2013!!!” Around the same time, she posted three tweets on her personal Twitter account that referred to an ITU congress after-party and execs who were “hungover and lamenting those tequila shots,” “propaganda” by ITU at the congress, and a reference to her “flying off the deep end” at her employer.

Kim testified the Facebook post was written in a “facetious, joking manner;” the tweet about the after-party was intended to convey she had a fun time with staff; the tweet about propaganda referred to “marketing or messaging” in an ironic, joking way; and the third tweet was meant to convey she was passionate about her job and that made her emotional sometimes. Kim said there was only one response from a athlete to the third tweet; the others had no comments.

Complaints about employee’s conduct

At the congress in New Zealand, the CEO of the Auckland World Triathlon expressed concerns about Kim to the secretary general. The CEO said Kim was difficult to work with and made things difficult for that organization’s media manager. At the secretary general’s request, the CEO sent a formal letter by email outlining his concerns to ITU.

ITU also received an email from the chief executive of the British Triathlon outlining concerns over tweets Kim made on her personal Twitter account expressing views that in her opinion showed little regard for certain athletes and were “effusive in personal praise for some athletes and showing a startling lack of balance.” Since Kim was responsible for ITU communications policy, the executive felt the athletes might feel Kim — and by connection ITU — had little respect for them. Kim testified she had interacted with these individuals and neither had mentioned their concerns directly to her.

On Nov. 20, ITU terminated Kim’s employment for “derogatory and defamatory comments on social media” and the formal complaints it had received from other triathlon organizations about Kim’s unprofessional conduct and negative attitude. This bahaviour was particularly inexcusable because of Kim’s position as senior manager of communications, the organization said. Kim was given two weeks’ salary in lieu of notice with the option of the payment of her salary until Dec. 31 if she signed a release.

Kim sued for wrongful dismissal, claiming ITU terminated her without cause “suddenly and without advanced warning.” She testified she was confused and if she had been told the organization had issues with her conduct she would have changed and behaved differently.

The court noted ITU didn’t rely on a single act of misconduct for just cause, but rather used the tweets, blog and two complaints as grounds for dismissal. ITU argued the secretary general had met with Kim on numerous occasions and had indicated to Kim her communication style was inappropriate, as well as warned her not to make “controversial work-related comments on social media.”

However, the court found Kim received no oral or written warnings that her conduct was unacceptable and could result in
discipline including dismissal. In fact, the evidence showed she received annual raises and was permitted to continue working after her emotional blog post.

The court acknowledged Kim, with her experience in communications, should have known better than to use social media as she did. It also accepted that the secretary general spoke to her about her communication style. However, “the evidence is plain that (the secretary general) never reprimanded, disciplined or criticized (Kim) specifically
regarding the content of the social media posts relied upon by ITU for cumulative cause.” The discussions didn’t qualify as a formal warning, said the court.

The court determined there was insufficient cause for ITU to dismiss Kim and ordered ITU to pay her five months’ pay in lieu of notice plus benefits, less money Kim earned working in another position she found in the last two weeks of January 2013.

For more information see:

• Kim v. International Triathlon Union, 2014 CarswellBC 3435 (B.C. S.C.).

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