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Using facebook for disrespectful, damaging and derogatory purposes

As I wrap up my “Legal Ease” series of articles this week, it seems fitting to address one of the latest emerging problems for employers. Employees’ use of social media websites, such as Facebook, to make negative comments about their employer has become a real headache.
It seems to have become fashionable for employees to publish critical comments about their employer (or former employer) on the internet. The nature of the comments often crosses the boundary into being legally actionable for, as an example, defamation. 
As internet networking sites became more prevalent as a forum of social interaction, it was perhaps inevitable that the commentary they contain would stray over into workplace issues. After all, if the internet is now just another venue for “chat”, then why wouldn’t people want to mention what they like (and more often) dislike about their workplace?
But communicating on the internet is fundamentally different than catching up with someone on the telephone or in person during your coffee break. And what the publishers of these comments don’t seem to grasp is that posting damaging comments on-line is worse than publishing them in a newspaper because the range of possible readers is unlimited.
The words of the person doing the posting are preserved in print, if only electronically. They can (and will) be copied and forwarded and circulated verbatim. The really critical point is that an internet “conversation” is in no way private. 
It has the potential (and likelihood) of being accessed by many, many internet users and of being duplicated and forwarded to unlimited potential readers. It’s easy to see that making negative on-line comments about one’s employer can cause exponentially more damage than making the same comment in a one-on-one conversation.
The B.C. Labour Relations Board recently dealt with just such a situation. The employer was the operator of West Coast Mazda in Pitt Meadows. The employees in question were members of a bargaining unit newly certified by the United Food and Commercial Workers International Union.
Between them, the two employees had almost 500 “friends” associated with their Facebook accounts. Commencing in August of 2010, a manager raised concerns about troubling on-line postings made by the two employees.
As a result, the employer began to monitor the employees’ ongoing Facebook activity. Soon, the postings began to speak of things like “unfair labour practices”, “workplace harassment”, responding to a “mental “attack” with stabbings, and began using obscenities to describe members of management.
Not satisfied to stop there, the employees began making highly objectionable comments regarding the sexuality and sexual activities of supervisory staff and then waded into openly obscene chatter. The commentary drew, in an extremely derogatory manner, conclusions about the employer’s business practices and accused it of being “f*#$in crooks” and “greedy … lowlife scumbags”.
The employer conducted an investigation and interviewed the two employees. They (surprise!) denied being the authors of the postings and claimed that others could have accessed their Facebook accounts without their knowledge. That form of “someone tampered with my water bottle” defence didn’t work for Ben Johnson at the 1988 Olympics in Seoul, and it had a similar impact here.
The two employees were dismissed for just cause reasons for making disrespectful, damaging and derogatory comments on Facebook. Their union complained that the terminations were evidence of anti-union animus on the employer’s part.
The B.C. Labour Relations Board viewed the employees’ postings as damaging comments about the employer’s business and rejected the concept that the employees could, in the circumstances, have any serious expectation of privacy.
The employees’ comments were characterized as offensive, insulting and disrespectful, amounting to insubordination. The Labour Relations Board rejected the assertion that the employer’s response had anti-union animus as its inspiration, and concluded that the terminations were not out of proportion with the misconduct – there was proper cause for summary dismissal in these circumstances.
It is difficult to imagine that these two individuals thought their employer wouldn’t ever come to hear about their on-line commentary. The fact is that people keep making the same mistake and, more and more frequently, the price for this misdeed is a loss of employment.
Robert Smithson is a labour and employment lawyer. He will be commencing a new column series in January, 2011. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.