The growth of social media and its integration into our lives and the workplace continues to evolve. Over the last decade, courts and arbitrators have consistently held that inappropriate social media postings may warrant disciplinary action, even if the content is posted while an employee is off-duty. Employees may face disciplinary action, up to and including termination, when they post content on public social media websites that damage the reputation of the employer and/or its employees.
In MacKinnon v Helpline Inc., 2015 NBQB 159, the employer terminated an employee for cause. The underlying issue was the fact that the employee had exchanged emails and “private” Facebook messages with a local reporter that were viewed by the employer to be damaging to its reputation and a breach of confidentiality.
The employer was a not-for-profit corporation operating a community food bank. The employee had worked for the employer for sixteen (16) years and was a manager at the time of termination.
While performing her duties at work, the employee met with a reporter who attended the food bank to write a story on an upcoming fundraiser. The reporter mentioned to the employee that she had heard a rumour that one of its Board members had misappropriated funds while volunteering at a church. The employee was concerned about this rumour, as the Board member had access to funds at the food bank. Following this meeting, the employee continued to communicate with the reporter about the rumour involving the Board member via email and “private” Facebook messages.
A co-worker advised the Board of the employee’s communication with the reporter. The Board conducted an investigation. The Board concluded that the employee had engaged in misconduct. She was terminated for “breach of trust.” The employee filed a wrongful dismissal action.
The employer alleged that the reason for dismissal was that the Board had lost faith in the employee because of her continued communication with the reporter about the rumour about one of its Board members.
The Court found that the communications between the employee and the reporter revealed no disclosure of any confidential information. The emails and private Facebook messages in question, although offensive and improper, were sent from the employee’s private email account while she was off-duty. They were not publicly available and as such did not cause any harm or embarrassment to the employer. There was no evidence that any communications had negatively affected the employer’s reputation in the community or its relationship with its clients.
The employer’s investigation of the matter was also addressed. Although the employee was assured she would be given an opportunity to be heard by the Board she was never permitted to address the allegations against her. In addition, the Board member in question played a substantial role in the investigation into the employee’s conduct despite the fact that he was at the heart of the rumour. The Court found that the Board member’s involvement in the investigation, and the actual termination of the employee, was inappropriate.
The Court concluded that the employer failed to establish that the employee’s off-duty conduct of sending emails and private messages constituted just cause for termination. The messages were exchanged while the employee was off-duty through her private email and Facebook account. The communication was between two persons. It was not widely disseminated. The employee was awarded 18 months’ pay in lieu of notice of termination.
Lesson for Employers
An employee’s off-duty conduct on social media will only warrant disciplinary action where the information is:
- widely disseminated; and
- damaging to the reputation of the employer and/or its employees.
Generally, the principles of progressive discipline will apply such that a single incident of an employee posting offence content on social media will not warrant termination unless the content is so egregious as to render progressive discipline inappropriate.
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Employee Wrongfully Terminated for Breach of Trust
For more information, please contact Jessica Bungay at coxandpalmer.com.