Since the beginning of time, employees have privately complained about work and made inappropriate comments to friends and family. Today, however, this venting is happening over the Internet. The internet has major reach and many employees, including professors, sports figures, comedians and writers, have already been terminated because of their Facebook and Twitter activity.
As social media continues to explode, this phenomenon will only become more prevalent and complex. Now is the time for employers to address it, and for employees to understand the implications of their social media comments.
Here is a cautionary tale involving two Toronto fire fighters.
In August 2013, the National Post published a story about two Toronto fire fighters who published sexist tweets which violated the employer’s social media and human rights policies. Critically, earlier that year, the Fire Chief had presented a report to Toronto City Council which outlined a plan to increase the number of women firefighters. This National Post article, however, cast the Toronto Fire Service (TFS) in a negative light. After conducting an investigation, the TFS terminated the employment of both male fire fighters. The Union filed grievances under the collective agreement and submitted both grievances to arbitration.
In the fall of 2014, one arbitrator upheld the discharge of one employee; another arbitrator reinstated the second employee and substituted a three day suspension for the discharge. To read the case, click here.
An Example of A Twitter Exchange that Resulted in Discipline
One of the employee’s received a three day suspension for the following exchange:
“ Just stood behind a girl who used the word “like” roughly 300 times to order her coffee. Stay in skool, kidz”
The employee wrote back: ” would swat her in the back of head been considered abuse or a way to reset the brain?”
The other person replied: “maybe foreplay”
The employee wrote: “unlikely, intelligence and a vocabulary is sexy. Saying “like” that amount of times means you have none”
An Example of How A Tweet can be Taken Out of Context
Tweets can easily be taken out of context. Consider the following exchange that was considered in one of the cases. The employee’s comments are italicized:
“where did you get it fixed?”
“A paki store in whitby mall. FM communication. No racism intended.”
“perhaps u might want to use a better word than “Paki” since it’s derogatory, just saying. #igniranceisapparentlybliss”
“Nope. This time it’s surprisingly accurate.”
“So does that mean if someone ask you where u got those shoes you’ll say that nigger store in Pickering?#thinkaboutit”
The TFS alleged that the employee’s comments were racist. The employee said he was criticizing the other person for being racist and that he used the N word to make his point because he was black. The arbitrator concluded the employee should not be disciplined for this exchange.
Implications for Employers
The bottom line: an employer can discipline an employee for off duty conduct if it harms the employer’s reputation. Negative press scrutiny generally harms an employer’s reputation.
Judges, arbitrators and other adjudicators will permit employers to discipline employees for failure to follow social media and human rights policies. Employers should therefore seriously consider introducing these policies.
Additionally, an employer should investigate all allegations of wrongdoing before disciplining an employee. Among other things, the employee should be asked to disclose all relevant information. If the employee is not truthful or fails to disclose the requested information then this can justify a harsher form of discipline.
Implications of this decision for Employees
Tweets are considered public comments which can harm an employer’s reputation even if you mistakenly believe the tweets are private. And while you can block access to your tweets, you cannot stop your followers from reporting your twitter posts. I repeat: privacy settings will not necessarily protect you from legal repercussions.
If you identify your employer in your twitter profile or in your tweets then you can be disciplined if one of your tweets harms the reputation of your employer.
What’s more, you can be disciplined for an inappropriate tweet even if no one complains about it. No one complained to the TFS about the tweets of either employee. There was no suggestion that the tweets caused a “poisoned work environment” within the meaning of the Human Rights Code. It appears that someone anonymously brought the tweets to the attention of the National Post.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on employment law issues. Among other things, he helps employers introduce social media and human rights policies into the workplace. If you have any questions concerning your rights and obligations in relation to your employees, you can contact him at 416 317-9894 or at [email protected]
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