On October 22, 2010, the British Columbia Labour Relations Board upheld the firing of two employees by a car dealership over comments they posted on Facebook about their employer. The lawyer for the employer stated to the Vancouver Province that he believes this is the first Facebook firing case to be heard in Canada.
The case is Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC L.R.B.).
The employees in question all worked in the detailing shop at West Coast Mazda in Pitt Meadows, BC. Las August, they successfully organized a union at their workplace. The union was certified on September 8, 2010. The parties are now in collective bargaining.
The case transcript indicates that due to the embarrassing and offensive nature of some of the comments made about individuals that form part of the evidence in this matter, they decided to identify all witnesses by initials only. According to the evidence submitted:
J.T. was employed as a detailer at West Coast Mazda for approximately four years. J.T. was one of the key inside organizers during the organizing campaign and was a vocal and visible supporter of the Union. The Employer was aware of his support for the Union from at least August 27, 2010.
A.P. was employed as an installer at West Coast Mazda for approximately two years. A.P. was a Union supporter and the Employer was aware of his support from at least August 27, 2010.
F.Y. is the reconditioning manager at West Coast Mazda. He has been employed in that capacity for the past four and a half years. J.T. reported directly to him. A.P. reported to a different manager but took direction from F.Y. as well.
F.Y., J.T. and A.P. were all friends on Facebook.
J.T. has almost 100 friends on Facebook including some present and former employees of the Employer. A.P. had 377 friends including some present and former employees of the Employer. A.P. deleted his account on October 1, 2010.
Importantly, two of the employees included West Coast Mazda managers and co-workers among their Facebook friends who were able to see every comment they posted.
During the drive to establish a union, J.T. and A.P posted various insulting, aggressive and offensive comments on their Facebook pages. Eventually, the comments became angrier, particularly once the union was certified. The comments increased in number and intensity and included homophobic slurs and threats. After a period of monitoring the comments, issuing warnings to the two employees, West Coast Mazda decided to fire them.
The Labour Relations Board provides a good description of the comments and the impact on the employer:
The comments made by the Complainants on Facebook were damaging comments about the Employer’s business, such as “don’t spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know”. These Facebook comments were made to either almost 100 or 377 people including employees. I find, based on those facts and the analysis in Leduc v. Roman that the Complainants could not have a serious expectation of privacy when publishing comments on their Facebook websites and therefore the comments are damaging to the Employer’s business.
The comments also included very offensive, insulting and disrespectful comments about supervisors or managers. As the Facebook comments were also made to other employees and former employees that were friends with J.T. and A.P. on Facebook, I accept the Employer’s assertion that these comments are akin to comments made on the shop floor. The comments about the supervisors amount to insubordination within the meaning of [British Columbia Forest Products] as they are “used as a verbal weapon to degrade a Supervisor in front of others”. J.T. also made comments that clearly identified and referenced discipline he had received at work. He also identified the manager and called him derogatory and insulting names. I therefore find the Facebook postings are not similar conduct to the inappropriate comments made on the shop floor on a regular basis (at paras. 97–8).
The union filed a complaint with the board, arguing the workers were fired for anti-union reasons and were targeted because of their union organizing activities.
The board disagreed and supported the firings, finding the Facebook comments, which went out to many other employees of West Coast Mazda, constituted just cause for dismissal. The dealership was faced with an uncertain situation, not having dealt with Facebook issues related to the workplace before, so it initially kept tabs on the comments. However, the board found that, as the comments escalated, the employer was within its rights to take action.
Despite the fact the comments were made offsite during non-work hours, the board found they contributed to a hostile work environment and constituted insubordination.
The lawyer who represented West Coast Mazda in this precedent-setting case further stated to the media: “It was the cyberspace equivalent of cussing out the boss, not only in front of other employees, but a couple hundred members of the public as well.” He warned employees shouldn’t expect any privacy on Facebook, and anything work-related they put on the site for everyone to see could affect their employment.
There have been several such cases in the United States, Britain and no doubt elsewhere—so many in fact that I’d bet that anyone who was keeping track has stopped. Of course, while these cases specifically involve employers firing employees due to posts on Facebook, there have been similar ones involving other postings on the Internet. You might remember that last year a trainee bus driver in Vancouver was fired for posting about his experience “learning about operating a bus”. The only difference that I can see is the expectation of privacy that Facebook users seem to have with respect to their posts. However, in the present case, it should have been crystal clear to the two terminated employees that their manager “friend” could and would be reading their rants.
I wonder what it will take for Internet users to learn that the Internet is not a gated community, where no one can see or hear what you do.
I suppose we’re in a transitional period. Much of the technology we use daily is new—so new that we haven’t yet had the opportunity to learn about it in school or from the news or even from friends. Moreover, the technology involves a number of pretty advanced concepts that we’d probably never even really thought about before in concrete terms. Who thought seriously about privacy before there was a risk that a controversial personal picture might become visible to family members or employers at the click of a button? What average person wondered about freedom of speech or respect for his employer before the opportunity arose to broadcast angry thoughts to dozens of friends and family members in an instant?
And it’s clear that many people still aren’t thinking about these things. (Or maybe they are, and they just don’t care.) We’re still happily and obliviously posting whatever we like on public blogs and semi-public social network pages. But the law doesn’t care whether you’ve considered the repercussions of your ignorance, and neither does your employer!
Personally, I have mixed feelings about firing employees for public comments on the Internet. If, as in the case of the Vancouver bus driver, the employee is simply talking and trying to start a conversation, rather than explicitly criticizing, I think employers should take caution and engage the employee, and not just terminate. But if, as in the West Coast Mazda case, the employees are acting in a disrespectful manner that might be damaging to the employer’s reputation and business, I have little sympathy for them when they find themselves out of a job. Of course, now they are more or less free to make whatever comments they like about the company, short of slander or libel, without fear of punishment.
What do you think? What’s the best way to deal with an employee who criticizes an employer in a public forum—to engage and, if necessary, discipline; or simply to fire away? Is there another option?