As technology continues to blur the line between personal and professional life, employers increasingly find themselves dealing with the impact of social media on the employment relationship. Not only can social media activity provide evidence of employee misconduct outside the workplace, it can also constitute grounds for termination in and of itself.
Social media activity showing off-duty misconduct
In the recent Public Service Labour Relations Board decision Chatfield v. Deputy Head (Correctional Service Canada) the termination of a corrections officer was upheld after her social media posts showed that she had lied to her employer concerning a recent bereavement leave.
Ms. Chatfield told her employer that her father had passed away and went on bereavement leave to attend his funeral. As it turned out, Ms. Chatfield’s father was not deceased and Ms. Chatfield had gone on vacation to Mexico. This came to light after Ms. Chatfield’s co-workers saw Facebook posts by Ms. Chatfield and her friends which showed she was on a trip to Puerto Vallarta, including 39 photos posted by Ms. Chatfield in an album titled “Mexico 2011.” Coworkers anonymously slipped printouts of Ms. Chatfield’s Facebook posts under managers’ doors and Ms. Chatfield was terminated. The Board held that Ms. Chatfield’s actions had broken the trust with her employer and her termination was upheld.
Social media activity as misconduct
In City of Toronto v. Toronto Professional Fire Fighters’ Association a Toronto firefighter was terminated for making offensive tweets from his personal twitter account. In making her decision, the arbitrator largely focussed on the sexist, racist and homophobic content of the tweets and how that reflected poorly on the employer. This was exacerbated by the nature of the employee’s role, as firefighters occupy a role of trust within society and ought to be held to a higher standard of conduct.
Along with the content of social media activity and the nature of the employee’s position, a survey of other decisions reveals the following oft-cited factors in determining appropriate discipline for social media misconduct:
- What audience did the post reach?
- What social media platform was used?
- What were the details of the platform (e.g. number of followers, privacy settings)?
- How long was the employee making posts?
- What was the employee’s response to discovery of the posts?
- Remorseful?
- Accountable?
- Were the posts in contravention of any workplace policies?
Suffice it to say, analysis of social media conduct goes beyond a face-value reading of the tweets, posts or other social media activity. When faced with an instance of social media misconduct employers should investigate not only the content posted, but also all relevant background information surrounding the misconduct, before determining the appropriate disciplinary response.
By Jonathan Ward, DLA Piper
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