By Joanne McPhail, Partner, Certified Specialist in Corporate and Commercial Law at Barriston LLP, and
Reginald Brown, Articling Student at Barriston LLP.
There is growing support for the principle that what employees write on social networking sites can indeed result in disciplinary action from their employers. This is true of an employee’s conduct both in and out of the workplace. As social networking sites continue to grow in popularity, many courts and administrative tribunals have already considered whether employers are justified in terminating employees for their off-duty conduct, be it for making disparaging remarks about an employer or fellow employees outside of the workplace, or even for making comments that may not align with an employer’s policies or expectations.
Regardless of the scenario, the main question a court or a tribunal will commonly ask is whether the degree of discipline imposed by the employer is an appropriate penalty given all the circumstances of the case. This is fact specific and will therefore vary from one case to the next. What is clear, however, is that postings on social networking websites are not considered private, even when an employee has taken steps to ensure that their posts are unavailable to the public (i.e. through restricting access, through private messaging, etc.).
To justify disciplinary action for an employee’s off-duty conduct, which includes social networking activity, an employer must consider whether the conduct is sufficiently business related so as to be harmful to the employer’s business interests and environment. Discipline may also be warranted when the postings made are so damaging that they poison the workplace and make it difficult for the employee to work productively with other employees or for the company.
The fact that a disciplined employee was under a misapprehension about who could access their Facebook or other social networking profile, will not relieve them from responsibility for what they have written. Even if postings are restricted to or made between friends online, this is not a guarantee of privacy, as there is nothing to prevent friends from forwarding messages to other individuals. Nor will it matter if the postings were made outside of working hours or with a non-work device, as social networking activity becomes a workplace issue when there is a real connection between the workplace and the postings in question.[1]
To avoid these issues, employers may wish to consider implementing workplace policies explaining the potential consequences of employee misconduct on social networking sites, as many are unaware that what happens on Facebook does not necessarily stay on Facebook.
[1] Canada Post Corp. v. Canadian Union of
Postal Workers (Discharge for Facebook postings Grievance), [2012] C.L.A.D.
No. 85.