The need to give warning

By Stuart Rudner 

A recent decision from the Supreme Court of British Columbia provides yet another example of an employee getting into trouble for her online conduct, as well as a reminder to employers that policies and warnings can make the difference between a finding that just cause for dismissal existed, and one where the employer is on the hook for substantial severance payments. 

In Kamm v. International Triathlon Union (“ITU”), the plaintiff was the senior manager of press communications for the Toronto 2015 Pan American games. At the time of termination, she was 34 years old. 

The plaintiff was widely known as the voice of the organization and her responsibilities included drafting materials for the website, preparing press releases, writing newsletters, updating the organization's Facebook account and working directly with the media. 

While working with ITU, the plaintiff maintained a personal blog in which she posted various comments and stories about her own life. At one time, she had two Twitter accounts, one of which was personal and one of which referenced her role with ITU. After she was requested to stop using the second Twitter account, she did so. 

Notably, the ITU did not have any policies regarding employee use of the Internet or social media, and never had any significant discussions with the plaintiff regarding her online conduct, other than to ask that she stop using the “Paula Kamm ITU" Twitter account. 

Issues arose when complaints were allegedly made regarding the plaintiff's online conduct and, in particular, derogatory and defamatory comments about management. She also posted a number of comments on her Twitter account after an event that clearly portrayed the organization in a negative light. She posted comments in which she supported some athletes over others, acknowledging in her tweet that she “will prob get in trouble for this…" 

When the plaintiff made a comment on her personal blog in which she compared an issue with her manager about vacation to abuse she suffered as a child, the organization decided it had had enough and terminated her employment. 

When the plaintiff was dismissed, she was not advised it was for cause and the organization indicated it would provide all termination pay owing pursuant to the British Columbia Employment Standards Act. It offered an additional amount if the plaintiff executed a full and final release. 

The court reviewed the law regarding summary dismissal, including the requirement that a contextual approach be adopted. The parties disagreed with respect to whether, since the employer was relying upon cumulative cause, warnings were necessary before summary dismissal was appropriate. 

The court ultimately found that some sort of warning should have been provided, but the plaintiff was given no warning that the online conduct was inappropriate or unacceptable, and that continued behaviour of that nature would result in termination of her employment. 

By way of contrast, the court noted that she received an increase in compensation and even at the time of termination, was not advised it was for cause. As the court wrote:

“Even had I found that the social media post amounted to an accumulation of misconduct and that the October 5 blog was the tipping point supporting the plaintiff's termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff's termination because ITU did not give the plaintiff an “express and clear" warning about her performance relating to the social media post, and a reasonable opportunity to improve her performance after warning her.”

Given that the employee's tenure was relatively short, the damages were not extensive. However, the case is a timely reminder to employers that if they want to strengthen a case for summary dismissal, it is crucial they clearly warn employees their conduct is not appropriate and failure to remedy the situation will result in termination. Furthermore, they must give the employee a reasonable opportunity to improve. 

At the same time, employees must be mindful of the fact that online conduct can result in discipline, including summary dismissal, in appropriate circumstances. As discussed on many occasions in the past, while off-duty conduct is, generally speaking, outside the purview of an employer, it can result in discipline if it has an impact on the employer or the employment relationship.