While we are a society that values our freedom of expression, employees should be aware that the misuse of social media can lead to discipline or even termination for cause by the employer.
In Kim v. International Triathlon Union, 2014 BCSC 2151, the British Columba Supreme Court had the opportunity to weigh in on the issue of employee discipline for social media misconduct. Paula Kim, a manager at the International Triathlon Union (ITU), was terminated after posting negative posts on her blog, Facebook and Twitter about her employer and direct supervisor. In one blog entry titled “taking s**t”, she wrote a long post about how “sometimes people are just evil pieces of s**t and just need to bring you down to make themselves feel more powerful or better than you… now thanks to my current boss, [my feelings of insecurity] is back in full force. and as my former colleague used to say, the spirit is broken.” ITU took the position that this blog entry was the tipping point that supported Kim’s dismissal after an accumulation of social media-related misconduct.
In his decision, Justice Cohen was “mindful of ITU’s position that given the plaintiff’s experience in the field of communications and the fact that she held a senior management position she ought to have known better than to use social media to comment in the manner she did”. However, the evidence was plain that ITU did not apply a course of progressive discipline regarding the content of Kim’s social media posts. Justice Cohen accordingly held that, even if the social media posts amounted to an accumulation of misconduct supporting dismissal, ITU could not rely upon cumulative cause as a ground for termination because ITU did not give Kim an “express and clear” warning about the social media posts, and a reasonable opportunity to improve her performance after the warning.
Accordingly, employees should know that one’s social media activity can impact the employment relationship. If you want to minimize the repercussions of social media on your job, consider some of these tips:
Remember that your online conduct and commentary online is often visible to the public, including your employer and co-workers;
Maintain privacy and “offline” settings to keep your negative or critical comments of your workplace and/or co-workers private;
Acknowledge that you may be bound by both implied and express duties of confidentiality as an employee; and
Be aware of your employer’s policies on social media and internet use.
And don’t forget that an apology can go a long way. In EV Logistics v. Retail Wholesale Union, Local 580,  B.C.C.A.A.A. No. 22, an employee maintained a blog that contained racist comments, references to his admiration for Hitler, and posts that identified the blogger as an EV Logistics employee. When confronted by the company, the employee immediately shut down the blog and issued an apology, but the company nevertheless terminated him. While the arbitrator agreed that the employee’s off-duty conduct was sufficiently connected to the company’s interests and serious in nature such that discipline was warranted, the arbitrator accepted that the employee was deeply ashamed of his actions and was committed to redeeming himself at work. As a result of these findings, the arbitrator reinstated him to his old job following an unpaid suspension.
In contrast to EV Logistics, Christopher Sandau, a minor league hockey coach in North Delta, was unapologetic when his employer confronted him about his pro-Nazi and anti-Semitic posts (including images of swastikas and Hitler, as well as propaganda denying the Holocaust) on Facebook. Although the hockey league reportedly gave Sandau the chance to keep his job by changing his Facebook settings to make his posts private, he refused the offer on principle and maintained that the posts were unrelated to his job. In terminating Sandau for cause, his employer determined that his decision to post “extreme and objectionable” materials on social media undermined the role of the hockey league. As of early 2016, it remains to be seen if Sandau’s case will be litigated, but we can certainly speculate that he might not have been fired on one strike if he had only switched his Facebook settings to “private” and apologized.