by Sara Parchello
While the summer has come and gone, employees’ photos of their summer activities may not be. If employees post those photos on Facebook or similar sites, employers may be confronted with just what employees did with their time over the summer. And what if, on a day an employee called in sick, you see photos of that same employee enjoying herself at a cottage, sunbathing on a dock with a cocktail in her hand?
Worse yet, what if the site allowed you to see the actual time that the employee posted the picture, being right in the middle of regular working hours? A recent arbitration case out of Alberta, Canada Post v. Canadian Union of Postal Workers, confirms that Canadian employers can rely on such evidence of inappropriate behavior.
Canada Post case
In the Canada Post case, an employee was fired after making derogatory and threatening postings about her supervisors on her Facebook account. She made insulting comments about her supervisors’ appearance and threatened violence against them. The supervisors named in the postings were so upset that they required leave from work.
When the union grieved the termination, it argued that the employee didn’t intend for the employer to see the postings. The arbitrator rejected the union’s defense, saying that the employee’s comments were linked to the workplace because she had coworkers as Facebook friends. As such, Canada Post was entitled to rely on them and was justified in firing the employee.
What this means for employers
The Canada Post case helps confirm that an employee’s comments and actions outside the workplace can affect his or her employment. An employee can’t expect that actions outside the workplace, even on the Internet, will shield him or her from discipline. Further, the fact that comments may not be made directly to the “victim” is irrelevant. That comments were made, and the employer becomes aware of them, may be enough to justify discipline, including termination for cause.
A word of caution: A Facebook posting won’t always be fair game to justify discipline. Employers need to be aware that an arbitrator or judge may consider how widely and publicly the employee broadcasted his or her bad behavior when determining whether the employer can use the posting to justify discipline.
Ontario case law suggests, for example, that an employee with nearly 400 Facebook “friends” doesn’t have a serious expectation of privacy. By this reasoning, a decision-maker could conclude that an employee with only a few Facebook friends may have a reasonable expectation of privacy in Facebook postings. In that case, an employer may not be able to rely on what the employee posts.
How does this case relate to the sunbathing employee?
Based on these principles, what could a Canadian employer do if it were to find an employee skipping work to sunbathe and drink cocktails at the cottage?
Remember that a Facebook posting may form the basis for disciplinary action against that employee. As such, the information should be preserved, copied, printed, and dated if the employer has any hope of relying on it.
The mere fact that an employer viewed an employee’s misdeed on Facebook or another social media site doesn’t automatically mean that the employee is “guilty.” The employer must still proceed as it would in the course of any investigation into employee wrongdoing, including giving the offending employee an opportunity to explain her actions.
An employer may rely on information viewed on another employee’s Facebook account to justify disciplinary action. Proceed with caution, however, as the posting may be off limits if the offending employee had truly restricted access to the offending post (e.g. she had few Facebook friends and stringent privacy settings).
Don’t try to gather information about employees’ wrongdoing by creating fake Facebook accounts and then “friending” employees. The employer may offend Facebook’s terms of use and the information gathered (if any) may not be usable. More concerning, information gained through covert means may leave the employer with information it can’t forget, creating potential human rights-related issues. An employer can take heart that most of the information posted on the Internet is available in some other forum or will come out eventually.
Viewing a Facebook misdeed doesn’t automatically mean termination. As in all cases, discipline must be proportional to the misdeed and with consideration of all mitigating factors.
