Social Media and the Workplace

A couple of recent decisions have highlighted the emergence of social media issues in the workplace.

In a precedent setting decision, a labour arbitrator in Ontario has found an employer liable for failing to protect its workers from harassment and discrimination relating to customer posts on the employer’s Twitter account (Toronto Transit Commission and ATU, Local 113, 2016 CarswellOnt 10550).

Most Recent Cases

The case arose out the Toronto Transit Commission’s (the “TTC”) Twitter account which it established several years ago to respond to passengers’ questions and concerns.  The union representing the TTC’s workers filed a grievance demanding that the TTC’s Twitter account be permanently shut down.  While the union complained about breaches of employee privacy and the lack of workplace safety, the crux of the union’s complaint was that the Twitter account created a platform for passengers to harass, demean and belittle TTC drivers, fare collectors and other employees. The union pointed to hundreds of “tweets” from passengers that were, in some cases, profane and abusive, and, in many others, racist, homophobic, threatening and discriminatory. The union alleged that years of complaints about the tweets went unaddressed by the TTC.

The arbitrator upheld the union’s grievance. While the arbitrator agreed that it would be difficult, for the TTC to regulate dialogue on social media platforms like Twitter, that was not a defence to workplace discrimination or harassment.  While the arbitrator declined to order the TTC to shutdown the Twitter account, he did order the TTC to create a social media policy that would allow it to effectively address inappropriate tweets made to the Twitter account.

In another recent case from Quebec, the employment contract of a “Montreal Impact Academy’s U14″ team coach was recently terminated as he made racist comments on his private Facebook page following the defeat of France against Portugal in the Euro 2016 final.  After the comments became public, the Montreal Impact sent out a press release dissociating itself from these comments, considering that they were totally unacceptable and against the fundamental values of the club and of the Academy.

This case highlights the issue of whether an employer can dismiss an employee for just cause (ie. without notice or severance pay) for having engaged in improper conduct on social media.  It serves as an accurate example of the challenges and consequences entailed by the increasing use of social networks by employees.

Improper Comments on Social Networks: Who is Responsible?

Recent case law demonstrates that dismissal for just cause can be justified when, amongst other factors, comments made online by an employee affect the employer’s reputation. For instance, when an employee openly criticizes his work, supervisors or colleagues through his or her private Facebook page, such behavior can be considered as a “serious reason” for dismissal on a just cause basis, without notice or severance pay.

However, depending on the circumstances, employers must usually follow steps before dismissing an employee for just cause for serious misconduct relating to the use of social media.  For example, an employer may be required to provide an employee with a warning in order to allow them to know their conduct online is unacceptable.  In some situations, courts will not consider an employee’s isolated misconduct online as a serious motive justifying dismissal. Moreover, employers must not only have clear policies regarding the use of social medial, but they must apply those policies in a consistent manner, or else they risk a court finding that dismissal for just cause being considered excessive.

From both of these cases, it is clear that the legal issues arising out of the use of social media in the workplace are becoming increasingly common and complex.  There are several takeaways for both employees and employers.

 For employers –  it is crucial to have clearly drafted social media policies that regulate employees’ use of social media. Furthermore, employers must be cognizant to remind employees of such social media policies on a regular basis and ensure such policies are enforced consistently.

For Employees – they must be careful to not post or write anything on social media platforms that affect their employers’ reputation or they could risk being summarily dismissed from their employment without any entitlement to notice of termination or severance pay.

Staying well-informed about your employment rights and duties is the best way to protect oneself at the workplace.