Full steam ahead

A CP rail conductor has gone full steam ahead against CP Rail after being fired by the railroad in December over social media activity, as seen in this Facebook post.

“Hey #CPRAIL, could someone maybe call me back about the thousands and thousands of dollars in wages you owe me? No one has returned my calls or messages but I know you lurk my social media because you fired me over modelling pics and socialmediawhatnot. So, anyways, hopefully this gets your attention and we can sort this out? Ex-Employee #1000980.”

Stephanie Katelnikoff was fired in December after an investigation into: her conduct and actions on various social media accounts; the content of and compliance of those postings with company policies, including CP’s code of business ethics, acceptable use procedures, internet and email policy; and railway operating and safety rules, according to CP.

The conductor had come into conflict with her employer before, notably back in 2014 when she was fired after a train derailment — but reinstated after it was found the accident was not her fault — and again in 2016 when she was disciplined for a video criticizing CP’s then-CEO Hunter Harrison.

Railway safety is a top priority at CP, said the company, in a Jan. 24 statement: “Katelnikoff’s termination related to her decision to post photos of herself in unsafe situations on railway property and equipment, committing railway safety violations, along with disparaging remarks regarding the company. Her termination was not about her posting of personal photos or information per se that were not related in some way to railway safety and CP.”

But the evidence package presented in 2017 included “racy” photos from Katelnikoff’s online accounts, to which she objected (along with filing a grievance and human rights complaint): “I admit and acknowledge that taking pictures on or near train tracks is a bad idea, for anyone. If those pictures were the only ones in my evidence package this would be a non-issue; however, there were screen shots of completely non-rail/CP-related material and subjective comments made about them by the investigating officer; that is where my issue lay.”

Balancing act for employers, employees

This battle highlights the perils of social media — both for employers and employees. And while employers should step carefully in monitoring employee activity online, they often have good reason to do so, according to legal experts.

“It used to be that off-duty conduct, whether it happens at work or doesn’t happen at work, it was difficult to establish a link to the employment relationship… but because it’s such a public forum, establishing that link to the employment relationship, I think, has become easier,” said Sean Kelly, a lawyer at Stewart McKelvey in Halifax.

It’s about balancing an employer’s legitimate business interests with an employee’s right to privacy, he said.

“The difficulty is when those lines get blurred, and each case has to be considered on its own facts based on the nature of the position, the nature of the social media posts, the content of them, and what the implications are for the employment relationship.” 

But the right to privacy and self-expression does not trump occupational health and safety obligations, nor does it permit employees to make disparaging comments about their employer on social media, said Kelly. 

“Those are both disciplinable offences.”

The key consideration is whether the content impacts the employer’s reputation or harms its legitimate economic interests, said Andrew Shaw, a partner at Baker McKenzie in Toronto.

“CP can make a pretty good argument that when you have a conductor who’s (in a photo) on the tracks, that that might harm legitimate business interests (due to concerns around safety).”

However, employers should make sure they’re gathering correct information, he said. 

“You have the potential of making certain employment decisions incorrectly based on the information you think you’re gleaning.”

The information could also be related to a prohibited ground under the human rights code, said Preston Parsons, a lawyer at Overholt Law in Vancouver.

“It leaves the employer open to a potential line of attack that the reason they made the decision to terminate or demoted somebody... was because of information they found which is prohibited to be considered.”

Determining discipline

In determining discipline for this kind of situation, there are a variety of factors an employer should look at, said Kelly.

“You’ve got to look at the nature of the posts, the frequency of the posts, what is the nature of the employer’s business, what type of position the employee holds…. is this an isolated incident, is there a pattern of this type of conduct, is it harassment, is it bullying, is it disparaging, are there safety risks… what does your policy say?”

And in a non-union environment, establishing just cause before an employment standards tribunal or at common law is challenging, said Kelly.

“That is not to say social media posts have not resulted in cause. And most of the law in this area comes from the unionized environment, so there are very few wrongful dismissal suits related solely to social media expression, whereas there are a growing number of arbitration awards, some with particularly egregious conduct, that have justified term for cause.”

Arbitrators are going to look at mitigating factors in determining what was appropriate but, generally speaking, “that threshold (for just cause) is higher in a unionized environment than it would be,” he said.

In a union context, the employer has quite a high standard to meet for cause, said Parsons, “and when they’re disciplining for off-duty conduct, they can’t merely guess there’s harm — they have to be able to point to actual harm that’s been done.”

In this case, an arbitrator would be looking at the employee’s conduct, the pictures she posted and whether they were taken on company property or in unsafe places or positions, and whether those photos are actually causing harm to CP, he said.

“The arbitrator will determine if cause was proportionate in the circumstances, or whether or not a lesser form of discipline should be substituted, such as suspension or other things, because in a union context, in a collective agreement, there will be a series of escalated steps to take usually before cause.”

Other considerations include whether or not the behaviour renders the employee unable to perform duties in the future; and whether the behaviour leads to others refusing to work with or respect that person, said Parsons.

“As a train conductor, she’s obviously in a position of leadership and authority and needs to be able to hold a position of authority that people will look up to and respect, so if that is harmed, it’ll make it difficult for her to function in her role.”

The employer can also rely on multiple pieces as cumulative cause, he said.

“All these things could be a slap on the wrist potentially but altogether it adds up to… (looking at whether) the relationship of trust between employer and employee to be able to do the role and represent the company well, is that still there or not?”

Since there is such a high standard to terminate for cause, particularly in the union context, a lot of employers opt to go the route of a severance offering, said Parsons, because “in many cases, it’s just easier, it’s more economical in the long run, unless something’s truly blatantly egregious.”

And employers may want to consider potential backlash if the story goes viral, he said, as in this particular case: “There’s questions around whether or not CP is policing morality versus their own policies.”

With everybody online these days, employers should consider a strong social media policy that indicates to new employees they must be mindful of the reputation of the company, said Parsons.

The policy should explicitly state the employer's expectations and what it will do if there’s a breach, the ramifications, along with the rights of employees, said Shaw.

“With CP… they obviously have a significant concern about safety so I would hope they have or will have a social media policy that refers specifically to safety, and that it would impact their reputation and legitimate business if there’s pictures out there showing somebody doing something unsafe,” he said. 

“If it’s a well-written policy that’s focused specifically on their business, and the real concerns they have around safety, then a breach of that policy would be really helpful in arbitration.”