Arbitrator upholds just cause termination in part on negative Facebook post

August 11, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR and Technology, HR Policies and Procedures, Human Resources, Training and Development, Union Relations

Social media has become entrenched in our society and millions of employees use it on a daily basis. However, employees are warned that making negative comments about their employers on social media can have significant repercussions. Arbitrator Norm Jesin recently upheld a just cause termination in part because the Grievor had made negative comments about the employer on Facebook after his employment had been terminated.

In SEIU, Local 1 (Cory Tucker) and Specialty Care Trillium Centre, the Union filed a grievance alleging that the Grievor, Mr. Tucker, had been dismissed without cause. Mr. Tucker had a lengthy disciplinary record and had been upset with his supervisors following a test for a new job. The Employer alleged that based on his disciplinary record, his threatening behavior following the test and allegations that he had brought a gun to the workplace, it had grounds to terminate him for cause.

In addition, after the Employer had terminated the Grievor, the Grievor posted a negative comment on Facebook that the Arbitrator described as follows:

The Grievor acknowledged the authorship of a facebook post which he posted after his termination. In his post he described the workplace as a “shit hole” and he stated he filed (sic) sorry for those who still had to work “in a place with so much negativity”. He stated that since he was “canned” he no longer had to “concentrate on all the bullshit I put up with at that place for 10 years”. He added that he “only concentrates on family and business now and lives a stress free” thanks to his Manager who has terminated his employment.

In argument, the Employer stated that the Grievor’s Facebook posts proved that he did not respect management and that it substantiated his just cause termination. The Union argue that there was no just cause and in the alternative, the Facebook post would suggest that payment in lieu of reinstatement might be appropriate.

Arbitrator Jesin concluded that there was just cause for the Grievor’s dismissal and held that his continuing negative feelings about his Manager and the Employer reflected in his Facebook post further justified his termination.

This case highlights that employees can and will be disciplined and terminated by employers for their comments on their social media. Therefore, employees are wise not to publicly disparage either their former managers or employers after any termination.

The case also highlights that it is a good practice to implement rules governing the use of social media by employees in employment contracts or policies and to also include non-disparagement clauses in severance agreements.

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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more