Northern Exposure

Employee’s Blogging Justified Firing — But Dismissal Overturned Anyway

Social networking sites and blogs are growing phenomena that present challenges to employers. Internet blogging allows people to publicly express their opinions like never before. Sometimes the viewpoints expressed affect the employment relationship.

Canadian case law on this topic is just starting. There are only a few decisions where injurious blogging concerning workplace-related matters warranted discipline. Unlike many U.S. employers, Canadian employers cannot terminate employees at will. They must establish a “just cause” for dismissal. Unionized employers must follow the disciplinary procedure set out in the union agreement.

One employer recently learned this the hard way. Although the dismissal of an employee for making disparaging, work-related comments on a blog was upheld by an arbitration board (see Alberta v. A.U.P.E., 2008, 174 L.A.C. (4th) 371), that award was overturned by a court because the disciplinary process set out in the union agreement was not followed (see Alberta Union of Provincial Employees v. Alberta, 2009 ABQB 208 (CanLII)).

“Running Girl,” an administrative employee in the Alberta government, was dismissed because of the contents of her personal blog. The blog contained unflattering comments about a number of her coworkers (who were identified by pseudonyms) and management.

Running Girl started the blog in March 2006 during a difficult time in her life. She decided to implement one of the recommendations of her therapist, which was to write things down as a “way to vent anger and helplessness.” She had recently learned about blogs. She had also taken up running, so she called the blog “Running Girl.”

The blog  identified her by name, indicated she lives in Edmonton, and one of her postings revealed that she worked for a department of the Alberta government. She also had two other blogs, “Big Freddy” and “Gossiping.” She knew that the blogs could be accessed and read by anyone on the Internet. Indeed, people responded to her from all over the world.

While much of the contents of the blogs dealt with personal matters, some was work-related. For instance, she posted an entry titled “Aliens around the Coffee Table.” That blog entry made hurtful comments about six of her coworkers who regularly met for coffee at work.

Another time, Running Girl posted an entry complaining about an administrative change, in which she wrote that she worked in “a lunatic asylum.” She even reproduced a memo from her supervisor with her comments about its content. Other postings on the blog discussed the inner workings of her department or mocked coworkers and supervisors.

Once the employer became aware of the blog’s contents, it investigated. This led to an interview with the employee and her union representative. They were presented with 74 pages of blog entries that were of concern. Running Girl defended her right to make the comments, invoking freedom of speech and the fact that she had removed people’s names.

Because Running Girl was largely unrepentant and unwilling to delete her comments from the blogs, she was terminated. Her employer said that the contents of her blogs had irreparably undermined the employment relationship and broke its code of conduct and ethics.

Arbitrator’s conclusions
The termination was initially upheld. The arbitration board noted that a number of the employee’s coworkers were negatively affected by the posts. The social environment and trust relationship of the office had been damaged. The board concluded that the material contained in the blogs was inherently destructive to the workplace relationship. It was contrary to the normal expectations of respect and dignity to which one’s coworkers are entitled.

The damage caused was enough to constitute just cause to dismiss. The board noted that the employee had taken no steps to prevent access to her blog and that on the contrary in some instance she invited others to write in and insult people they did not like.

The court’s decision
The court overturned the arbitration decision but not because it disagreed on the “just cause” issue. Rather, the decision was overturned on the ground that the board erred in finding that the employer had complied with the disciplinary process set out in the union agreement. The agreement stated that an employee to be interviewed for disciplinary action is entitled to receive notice of the time and place of such meeting and may be accompanied by a union representative.

In this case, Running Girl had not received advance notice but had been summoned on the day of the interview. Also, she was not told during that meeting that the interview was disciplinary in nature. The court’s view was that these errors were fatal and made the discipline null and void.

Lessons for employers
Employers must be proactive when it comes to Internet blogging and the workplace. One way is to institute formal confidentiality policies at the workplace that are broad enough to encompass new means of communication. The policies should cover any and all disclosure of confidential information (made to the public at large or otherwise, including blogs and sites like Facebook). Employers can implement policies that set limits on personal use of computers while at work, such as on the Internet, blogs, and social networking websites.

Company policies should also educate employees about how they apply to certain off-duty conduct. Employees should be reminded that anything they post online could be read by anyone at anytime. They should be encouraged to think about how coworkers, clients, or supervisors would react to any public comments. And the policies should spell out the consequences for violations.

Evidently, in this case, Running Girl had not considered the impact that her comments would have on coworkers and their work environment. The decisions indicate that employees cannot simply invoke free speech or the omission of people’s names to publicly make derogatory comments online about workplace-related matters.

Such policies can greatly assist an employer who may have to decide on the appropriate disciplinary action to take in particular circumstances and to determine whether there is a “just cause” to dismiss an employee.

Contact the author, Dominique Launay