Many employers would fire employees for inappropriate social media posts, but can that be cause?
Social media is woven into contemporary life for many people. There’s a range of views on its value to society – some see it as a great way to connect and interact with people, while others see it as a cesspool where people can hide behind false identities and promote harmful ideas and behaviour.
For employers, the former would be great while the latter could spell trouble for the workplace.
Promoting greater professional connections can benefit a business and possibly improve employee productivity, along with promoting the company’s products or services.
However, employees who use social media and online platforms for darker reasons could mean it comes back on the employer. If that happens, what should an employer do?
A recent survey found that 86 percent of Canadian employers would fire an employee based on inappropriate social media posts. Inappropriate posts, according to survey respondents, include those that damage the company’s reputation, reveal confidential company information, discuss illegal drug use, violate the company’s social media policy, or discuss underage drinking.
Of course, when a Canadian employer dismisses an employee for cause, the onus is on the employer to demonstrate just cause if the employee claims wrongful dismissal. So what might constitute just cause when it comes to social media behaviour, particularly since it often will happen while the employee is off duty?
Negative Facebook comments
If we go back about a dozen years, a BC auto dealership discovered that two employees were making increasingly hostile comments about its products and managers on Facebook, including one that insinuated stabbing someone multiple times if they “mentally attacked you” and another calling the company “crooks” using profanities.
One of the managers was a “friend” with one of the employees on the site and could see the status updates. The employees were fired for creating a hostile work environment for co-workers and supervisors, which the BC Labour Relations Board upheld due to the egregious nature of the comments and the damage they could have done to the employer’s business.
Disparaging blog, inappropriate tweets
Around the same time, a senior manager of communications for the International Triathlon Union (ITU) – which was based in Vancouver – wrote an emotional entry on her personal blog page about a dispute over vacation time, in which she compared her boss to her abusive mother and used a profanity. The post was seen by staff members and her boss was embarrassed by it. A short time later, she tweeted on her personal Twitter account about an afterparty and propaganda by the ITU.
The worker was fired for derogatory and defamatory comments on social media, but a BC court found that she had not been previously warned that her conduct could lead to discipline including dismissal and awarded her wrongful dismissal damages.
In 2014, an Ontario worker in the oil and gas industry posted a comment on Facebook complaining about a co-worker, following a dispute with her. He didn’t refer to her by name, but he mentioned a distinctive physical characteristic that clearly identified her. Another co-worker made a derogatory comment to the post that suggested a violent and humiliating act and used a cruel nickname, while other employees posted comments as well.
The worker later removed the post and apologized, but the employer fired him for online harassment of his co-worker. The arbitrator upheld the dismissal, finding that the post was “vicious and humiliating” and, since other employees could view the post and comments, it was likely that the co-worker in question would hear about them – which would constitute harassment.
More recently, an Ontario arbitrator upheld the firing of a college instructor who, after being cautioned about inappropriate social media posts previously, leaked materials from an equity, diversity, and inclusion training program for college employees with which he disagreed to a right-wing media website, which led to a backlash against the college and its director of diversity and inclusion.
The arbitrator considered that it was a thought-out action, the instructor didn’t apologize, and it potentially harmed the reputations of the college and the director.
The value of social media pretty much lies in the hands of those who use it and how they use it. When an employee dips into the cesspool and drags other employees or the employer into it, the employer may be able to cut that employee loose – if it amounts to just cause, of course.