Social media has transformed almost every aspect of daily life; employment relationships are no exception. Employers have addressed these novel challenges by adopting codes of conduct governing the use of social media by employees.
In this context, illegitimate and abusive use of social media by employees, even outside the workplace, may entail disciplinary sanctions including dismissal for cause. A social media profile, even under restrictive privacy settings, is not really private, as Quebec courts noted on more than one occasion.
Two recent decisions provide insight into the many issues and challenges employers face with respect to employee use of social media.
In the Syndicat des travailleurs de la santé et des services sociaux de Sept-Îles – CSN et Centre de santé et des services sociaux de Sept-Îles, the union challenged the dismissal of an employee for making disparaging remarks about her employer on Facebook.
The arbitrator upheld the dismissal and held that the magnitude and repetitive nature of the employee’s actions justified an exception to the principle of progressive disciplinary sanctions.
The respondent, a nursing assistant, was pregnant and obtained from her physician a certificate prescribing preventive withdrawal or an assignment to another post. In accordance with its established policy, the employer offered to the plaintiff to be assigned temporarily to a position that would not pose a risk to her health.
The plaintiff then expressed her frustration against her employer on Facebook. In rather colourful terms, she insulted the employer, swore that she had not yet said her last words on the matter and stated that she did not like the hospital already but that now it was "100 x worse".
She had 229 Facebook friends, mostly employees of the same employer, or people working in the health care industry. The arbitrator also stressed that the plaintiff had repeated her insults against the employer on two separate occasions on Facebook.
The employee apologized during the arbitration and blamed her comments on her health and her fear of "losing her baby".
The decision of the arbitrator
The arbitrator confirmed the employee’s dismissal and concluded that : "[Translation] what she [the plaintiff] wrote was very shocking, rude and vulgar, borderline insulting and damaged the reputation of the establishment".
According to the arbitrator, the plaintiff’s statements may cause dual harm to the employer, having an impact on both (i) the recruitment potential of the hospital, in the context of a shortage of the medical workforce in the region, and (ii) the work environment that, according to the parties, was already tense.
Finally, the arbitrator did not accept the mitigating circumstances invoked by the plaintiff such as her belated apologies, her fear of losing her baby and the fact that she felt anxious and unable to work, because the medical evidence did not support her claims.
Dismissal substituted by a suspension
A mechanic and former union representative, Mr. Landry, was fired for posting defamatory comments on Facebook directed at one of the employer’s representatives.
Mr. Landry, acting as spokesman, had complained on several occasions to a representative of the employer responsible for food quality. He had informed her about the employees’ dissatisfaction with the food offered by the employer. His dissatisfaction increased when a new policy was established by the employer to prevent food theft, prohibiting employees from entering the cafeteria with a backpack or a lunchbox. Following the introduction of this new policy, Mr. Landry lost his temper and published, on a private Facebook page, which was accessible to about 80 employees, disparaging comments toward the employer’s representative: [Translation] "this fat cow", "she is a f****** hyprocite", "if she was rationing herself as she does for us, she would surely be a little slimmer"and "we should start thinking about making a petition to make her leave, in order for her to take actions".
An investigation was held, during which time Mr. Landry was suspended. The employer finally dismissed him based on two grounds: (i) the violation of the employer’s policy concerning the use of social media, and (ii) the comments which deliberately affected the dignity of another employee.
The decision of the arbitrator
In his decision, the arbitrator conceded that the comments made by Mr. Landry constituted an offense considered to be objectively serious. The comments were "disrespectful", "defamatory" and "degrading" in the arbitrator’s eyes and affected the other employee’s dignity.
In its defense, the union invoked Mr. Landry’s ignorance of the employer’s social media policy. The arbitrator dismissed this argument because Mr. Landry recognized that making defamatory statements was not permitted in all circumstances. That being said, in a similar situation, the employee’s knowledge of the policy will usually have to be proven. Employers should always make sure that all their employees are informed of the existence of internal policies and that they understand their responsibilities pursuant thereto.
In his analysis of mitigating and aggravating factors when determining the appropriate sanction in this case, the arbitrator considered the absence of previous intervention by the employer. He noted that the evidence showed that the bad temper of Mr. Landry was known by the employer. In fact, the victim of M. Landry’s latest outbursts testified that she had reported his disrespectful comments to the employer in the past. Among other things, Mr. Landry had emailed her defamatory comments in the weeks prior to the event. However, the employer failed to act on her complaints. The extent of the employer’s actions was to send a memo to all of its employees stating that it had been made aware of disrespectful and inappropriate behavior on the part of employees and reminded the employees that such behaviour was forbidden and may lead to the imposition of sanctions. The arbitrator treated the laxity of the employer as a tacit tolerance and stated the following: "[Translation] With respect, I think that it would be unfair in a climate that is too lax, to allow the employer to suddenly decide to intervene by imposing on the respondent the ultimate penalty […]".
Finally, despite the seriousness of the misconduct, the arbitrator considered that the dismissal of the respondent constituted an unreasonable penalty. Therefore, the grievance was upheld in part and the arbitrator replaced the dismissal with a lengthy suspension without pay.
It would be relevant here to briefly comment on the notion of "union immunity". In Quebec, courts recognize that union representatives benefit from a partial immunity characterized as "relative". Thus, a union representative has a special status giving them some leeway as they are able to criticize an employer’s decision without breaching their duty of loyalty. In this case, although Mr. Landry acts as union representative and as spokesperson for the employees, the arbitrator does not at all address the concept of "union immunity". However, had it been addressed, we believe that the decision would have been the same. Indeed, the arbitrator’s decisive factor was the fact that the insulting or defamatory statements were addressed directly to the employer’s representative and not at the policy or decision of the employer.
These two recent arbitral decisions highlight the importance of adopting social media policies in the workplace. Employers who adopt such policies should also apply them consistently and equitably and ensure all employees are made aware of said policies, in order to impose disciplinary measures as severe as dismissal when circumstances require to so.
Syndicat des travailleurs de la santé et des services sociaux de Sept-Îles – CSN et Centre de santé et des services sociaux de Sept-Îles
AcelorMittal (Exploitation minière Canada, s.e.n.c) c. Syndicat des métallos, section locale 5778 (Frédéric Landry), 2014 QCTA 351.