Workplace Resolution #3: Watch What You Say Online…

What you say online stays online and could get you fired. It is becoming increasingly clear in Canada that offensive or disparaging online statements can merit termination for cause, particularly where the conduct has a negative impact on the employer. Surprisingly, the same is not necessarily true in the United States (see my post here for more details). However, the recent wave of employer-supportive decisions favouring terminations for cause may have given some companies a false sense of security. The recent decision of Kim v. International Triathlon Union, 2014 BCSC 2151 is a good illustration of that point and how employers still need to consider disciplinary action before terminating an employee for social media postings.

In it, the plaintiff, a short service employee responsible for, among other things, social media for her employer, made a number of questionable “tweets” and Facebook posts, including:

[29] Specific reference was made to three tweets from the plaintiff’s personal Twitter account, and one Facebook message: the Facebook message, written in late October 2012 after the world championships wrapped up on October 23, read: “2012 ITU season…DONE. now leave me alone until 2013!!”; the three tweets (one without a date, one dated October 22 and the other November 4 read: “surprisingly fun congress after-party last night. probly [sic] only time I’ll see so many Eboard members hungover & lamenting those tequila shots”; “I wonder if other IF congresses have as much propaganda as ours…”; and finally, “hey ITU, remember this next time I fly off the deep end…‘@Relationship 1O2: If I didn’t care, I wouldn’t get mad.’”

She wrote a blog post entitled “taking shit” describing her employer and was difficult with international partners. Her employer argued vigorously that her conduct amounted to just cause. The Judge disagreed:

[221] Thus, even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff’s termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff’s termination because ITU did not give the plaintiff an “express and clear” warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her. I should also say in this regard, that counsel for ITU conceded that ITU should not be able to rely upon the proof of the truth of the content of Mr. Beeche’s letter in support of its position on cumulative cause, as he was not called to testify as a witness at the trial. In fact, the plaintiff’s alleged conduct complained about in the letter was not even brought to her attention until after her termination.

Bottom line? Employees must watch what they say online but employers need make sure that they are providing proper feedback to their employees about their conduct.

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