SOCIAL MEDIA: The AFREA

B.C. Labour Relations Board upholds terminations for Facebook postings - Labour & Employment Newsletter - November 2010

Employers continue to discover that a quick search of Facebook and other social networking sites can uncover a myriad of workplace issues, ranging from breaches of confidentiality to insubordination in the workplace. The B.C. Labour Relations Board recently dealt with Facebook postings in Re Lougheed Importers Ltd., BCLRB No. B190/2010.

The employer operated an automotive detailing and accessory shop. Over a period of several weeks, "J.T.", an employee and known union supporter, posted comments on Facebook about his work, his supervisors and managers, and his employer. Many of the posts contained violent, derogatory, or offensive comments. J.T. wrote about stabbing a man, referred to his boss as a "Complete Jack-Ass", and suggested that two of his supervisors performed sexual acts together in the workplace washroom. J.T. commented that the equipment he bought from his employer did not work and recommended the products of a direct competitor. J.T. also claimed that the employer "ripped off" a bunch of people he knew.

Similar posts were made by “A.P.”, another employee.  A.P. stated, among other things, that the employer was a low-life scumbag, a crook, and out “to hose” people.  A.P. also urged people not to spend money on the employer’s products and services.  All of A.P.’s comments were posted on the same day.

The Board found the employer had proper cause to dismiss both employees and rejected the union’s claim that the terminations were a result of anti-union animus.  The Board found that the two employees could not have had an expectation of privacy when their postings were read by their Facebook “friends”.  The Board also found that their comments were damaging to the employer’s business and “very offensive, insulting and disrespectful” to the employer’s supervisors and managers.  The Board held that because the audience of Facebook friends contained employees and former employees, the derogatory comments about the supervisors were akin to comments made on the shop floor.  The employees’ dishonesty during the employer’s investigation into the postings (i.e. their denials of making the postings) compounded the misconduct, and was a significant factor in the Board’s decision to find proper cause in the termination of A.P.’s employment for comments that constituted an isolated incident.

It is important for employers to copy and save the internet postings at the time that they are discovered.  That was critical to the employer’s case in Re Lougheed Importers Ltd. because A.P. had deleted the postings from his Facebook page almost immediately and then closed his Facebook account the next day.

The Board’s decision in Re Lougheed Importers Ltd. is a useful reminder to employers of the right to discipline employees for posting comments on the internet that conflict with the employee’s duties to the employer, even if the postings are done outside working hours using the employee’s own computer.  If there is a real connection between the comments in question and the workplace (e.g. the posted material interferes with a co-worker’s ability to work with the employee, undermines management’s authority, or damages or has the potential to damage the employer’s legitimate business interests and reputation), the comments become a workplace issue.  An employee, as the Board observed, may be “entitled to his opinion”, but “displaying his opinion about work related issues may have consequences within the employment relationship”. 

Although the world of social networking and blogging is fairly new, the basic principles of employment law are well-established.  Posting comments on the internet that conflict with the employee’s duties of loyalty and fidelity, or the duty not to disclose the employer’s confidential information, will be grounds for discipline up to and including termination of employment.