DISCIPLINE FOR INAPPROPRIATE OFF-DUTY USE OF SOCIAL MEDIA

By Michelle Alton and Thomas Agnew, Hicks Morley LLP
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The utilization of social media has grown exponentially in the past few years. In light of this, employers have more reason than ever to consider how to effectively manage employees utilizing social media sites with respect to limiting potentially negative effects in the workplace.
In the context of an employment relationship, social media issues can arise in one of two ways: first, issues may arise if and when employees utilize social media sites while they are at work; and second, issues can arise when employees utilize social media sites inappropriately outside the workplace. In general, employers can only regulate off-duty conduct when it can be shown that the conduct will have an impact on the employer’s interests, and/or the workplace in general.

In this context, one of the most common examples of inappropriate employee use of social media sites is when employees post content that is critical of their employer and/or other employees working for the employer.

Recently, Arbitrator Chauvin considered what discipline was appropriate in a case where three employees had posted inappropriate comments on the social media site, Facebook. In his decision, he provided a detailed overview of the general arbitral principles relating to employee discipline or discharge for inappropriate use of social media sites.

Background
All three of the employees involved were employed by Bell Technical Solutions (“BTS”) as Technicians. Two of the employees, referred to as Mr. A and Mr. S in the decision, were regular part-time employees. The third employee, Mr. W, was a temporary part-time employee. At the time that the discipline was imposed, Mr. A had worked for the employer for 9.5 years and was 41 years old. Mr. S had worked for the employer for 7.5 years and was also 41 years old, whereas Mr. W had only worked for the employer for 18 months and was 20 years old.
Mr. A and Mr. W were terminated for the inappropriate comments that they had posted on Facebook regarding BTS and/or their supervisor, Mr. B. Mr. S was suspended for five days for making inappropriate comments about Mr. B on Facebook. All three of the employees were warned to stop posting these inappropriate comments on Facebook, but failed to do so.
During the initial discipline meetings, Mr. W and Mr. A were very unapologetic and defiant. As a result, BTS terminated the employment of both individuals. Mr. S was more reasonable in the discipline meeting, and as a result, BTS chose to suspend him for five days.

Significant Discipline Warranted
Arbitrator Chauvin upheld the five day suspension of Mr. S and the termination of Mr. W. He substituted the termination of Mr. S with a one-year disciplinary suspension without pay.
In making his decision, Arbitrator Chauvin noted the following:

•  It is well-established that inappropriate Facebook postings can result in discipline or discharge, depending on the severity of the postings. The nature and frequency of the comments must be carefully considered to determined how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company.

• When determining the appropriate disciplinary measure, it is important to consider the following factors: whether the individual was uncooperative, defiant, and/or dishonest during the employer’s investigation and whether the individual admitted to engaging in misconduct, accepted responsibility, showed remorse and/or offered a genuine apology.

• Provocation, which could include inappropriate behaviour by a manager, can be considered as a significant mitigating factor.

On the basis of these factors, Arbitrator Chauvin found that the postings of Mr. S were less offensive and frequent than those of Mr. A and Mr. W. The postings were also not related to BTS, but to Mr. B, who the Arbitrator concluded had a temper and could sometimes become upset or yell at work. Nonetheless, the postings were serious, Mr. S was insolent to his supervisor and he failed to stop posting when he was first asked to do so. Therefore, the five day suspension was upheld.

In contrast, Arbitrator Chauvin concluded that Mr. W’s postings were very disparaging of BTS and Mr. B, and included profanities and inappropriate pictures. The postings were made over a prolonged period of time, and were premeditated and deliberate. Mr. W refused to stop making the postings despite being asked to do so on two occasions. The postings were very public, Mr. W lacked remorse, did not acknowledge any wrongdoing and did not provide a sincere apology. The Arbitrator found that there was no provocation in the situation and in light of Mr. W’s short-service and temporary, part-time position, the termination was upheld.

Finally, Arbitrator Chauvin concluded that Mr. A’s misconduct was also very serious and warranted significant discipline. However, he noted that unlike Mr. W, Mr. A did not make any postings which were derogatory to or ridiculed BTS, provocation was a factor as Mr. B had acted in appropriately with Mr. A, and Mr. A’s length of service was much longer than Mr. W’s. Therefore, Arbitrator Chauvin concluded that it was appropriate to substitute Mr. A’s termination with a one-year disciplinary suspension without pay.

Accordingly, this decision confirms that depending on the circumstances, significant discipline can be imposed when social media is utilized in an inappropriate manner outside of the workplace. When assessing the appropriate disciplinary penalty, employers must consider all of the factors articulated above, especially when more than one employee is involved. All allegations should be put to each employee, and notes should be made about the employee’s behaviour during the investigation. Any possible provocation in the circumstances should also be assessed, as this can be a mitigating factor.

Best Practices
In order to effectively manage employee social media use as it may impact on the workplace, it is critical that employers develop and consistently enforce policies and procedures regarding social media.
Employers should ensure that they have social media policies in place that include:

• A direction regarding whether social media use in the workplace is permitted. It should be clear to employees whether they can access social media sites during working hours.

• A statement that posts on social media sites will not be considered private, even if a posting is made to a limited number of “friends’. Employees should also understand that if they chose to identify themselves as an employee of a particular employer, they must represent themselves and the employer appropriately.

• A rule that prohibits employees from speaking on the employer’s behalf without permission, and a rule that requires employees to use a disclaimer when publishing communications that may be perceived as the employer’s communication.

• Guidelines as to what kind of posts are acceptable and what kind of posts are considered inappropriate. Examples of inappropriate posts include disclosing personal information of clients, posting confidential company information, and/or posting disparaging comments about the employer or other employees.

•  A statement that any violations of the policy may be grounds for discipline, and in appropriate circumstances, may be grounds for termination.

• A provision that employees should also be encouraged to ask questions regarding the policy.

It is important to have a strong social media policy in place, so that employees will not only know what their obligations are, but so that they will understand that inappropriate utilization can lead to significant disciplinary consequences.

Michelle Alton and Tom Agnew are lawyers in Hicks Morley’s Toronto office and they assist municipal clients of all sizes with labour and employment issues. Michelle can be reached at 416.864.7238 and Tom can be reached at 416.864.7227.

Thank you to the OMHRA Echo for allowing republication of this article.