It is becoming more and more clear that an employee's use of social networking websites such as Facebook, Twitter and MySpace may lead to justifiable discipline by an employer. On October 22, 2010, the BC Labour Relations Board released its decision in West Coast Mazda (d.b.a. West Coast Detail & Accessory Centre) and UFCW Local 1518, in which it dismissed the union's unfair labour practice complaint and agreed that the employer's decision to terminate two employees for their Facebook postings during certification was appropriate.
The facts and timeline in this case are critical: the union applied for certification on August 26; the employer received notice of this application on August 27; and the union was certified one week later, on September 8, 2010. There were three key individuals involved in this case: one employee who was a key inside organizer with four years' service; a second employee who was also a union supporter with two years' service; and a third employee, the manager, with over four years' service. All three individuals were 'friends' on Facebook.
On August 27th, one employee updated his Facebook status to read: "(at work) sometimes accidents DO happen, its unfortunate, but that's why there called accidents right?" The manager brought this posting to the attention of a superior. Not knowing how to react, the employer started a file, logging the Facebook posting as a first incident. One week later, the employee posted another complaint on Facebook: "c'mon Guys??? At least read up on the laws before ya throw the first punch...because that second punch can by a DOOZY". Still unsure how to react, the employer noted this posting as a second incident.
On September 17th, the employee's Facebook status stated "if somebody mentally attacks you, and you stab him in the face 14 or 16 times....that constitutes self defence doesn't it????" Now things were starting to heat up.
On September 23rd and 24th, the employees' manager was stunned when he saw several violent discussion threads on Facebook between the two employees. The threads included references to serial killers, revenge plots and other dark commentary in connection with the employees' dissatisfaction at work. These postings were logged in the employees' thickening file.
Finally, on September 27th, one of the employees posted homophobic and derogatory comments about the manager. The other employee posted an attack on the employer's business, saying "west coast detail and accessory is a **** joke....don't spend your money there as they are **** crooks and are out to hose you...there a bunch of greedy low life scumbags... ". The employees' lengthy discussion thread also warned Facebook 'friends' not to shop there. After seeking legal advice, the employer fired the employees for cause.
Unfair Labour Practice Complaint
In response, the union filed an unfair labour practice complaint under B.C.'s labour legislation. It argued that the employer was driven by its anti-union sentiments and planned to rid the workplace of union supporters in order to intimidate its other employees. In support of its argument, the union noted that the employer suspiciously began collecting Facebook postings on August 27th - the same day it learned of the union's certification application. The union also argued that the employer had condoned similar racist and sexist commentary on the shop floor in the past.
Though the labour board agreed that the employer's timing was suspicious, it determined that the employer had cause to fire the employees:
- If the employer were simply looking for a reason to terminate the employees' employment, it would have done so after the postings on September 24 - those postings were sufficiently harsh. Instead, the employer continued to monitor the employees' conduct, demonstrating its uncertainty about the novel situation. The board also doubted that the employer was scheming all along because it sought legal counsel before reacting to the postings.
- The employees' Facebook commentary was not just like the 'shop-talk' that was previously tolerated. In this case, the employees had a combined audience of 400 or more Facebook friends.
- The employees' postings about specific managers constituted insubordination.
- The employer conducted an investigative meeting with the employees before imposing discipline. The employees denied making the postings at all and claimed that someone else must have hacked their Facebook accounts.
Though this may be the first legal decision addressing Facebook specifically, it is not the first of its kind. In a 2007 Ontario arbitration decision, the 'for cause' termination of a personal caregiver was upheld when she posted confidential information about patients and managerial decisions on her personal blog. Similarly, in a 2009 decision from Alberta, an arbitrator upheld a 'for cause' termination on the basis that the grievor's expression of contempt via her personal blog for co-workers and management "seriously and irreparably damaged the employment relationship" (although this decision was overturned for other reasons). Taken together, these decisions happily confirm that Canadian employees can be disciplined for inappropriate use of social websites (or, at the very least, that employees should be careful who their friends are!).