Sunday, September 11, 2011

Web 2.0 in the Workplace: Editorializing

In the Web 2.0 introduction on Friday I mentioned a website called "Please Fire Me", in which employees gripe anonymously about their employers.  One gripe caught my eye, as follows:
Please fire me. I am not friends with my boss on Facebook, so he has his other employees who are friends on Facebook to show him my statuses. Then he gives me s*** about them.
Sounds like Please Fire Me isn't the first venue this employee tried for griping about his boss.  But it's a good example of the dangers of posting online.  (I also think it shows an interesting workplace dynamic; I generally advise against adding co-workers and especially subordinates to Facebook friends lists.)  Facebook is one example.  Issues commonly arise with personal blogs, as well.

There are three categories of posts that can raise questions.  There are posts which disparage the employer or its employees, posts which compromise employer confidentiality, and posts which threaten to bring the employer into disrepute because of its affiliation with the employee.

Disparaging the Employer or Others in the Organization

I never fail to be astonished by the casual manner in which people will disparage their employer or co-workers, by name, for the world to see.  There's nothing private about the internet, so posting in a blog or on twitter about how much you hate your workplace, your boss, or your co-worker is almost bound to come back to you, and it's never good.  Posting it on facebook is almost as bad, and worse if you have any co-workers who are on your friends list.

Note, though it is not the central purpose of this post, that actions for libel can be brought and have been brought based on defamatory internet postings.  Here, however, I will consider the workplace consequences.

The severity of such conduct depends on a few factors:  What did you say, who is the potential audience, and how did you identify yourself and the others involved?  And, most importantly, did it harm the employer?

Griping, in and of itself, is going to be a minor infraction at best.  People gripe about their jobs.  It's a reality, and the Courts understand that.

This issue was considered in the Saskatchewan case of Caudle v. Louisville Sales & Service Inc. in 1999, and Justice Laing made the following observation about griping:
The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment, and certainly not to clients or customers of the employer. However, griping is not exactly unusual in a work place, and the type of conduct alleged against the plaintiff would not justify dismissal the first time it came to the employer’s attention, if he had been guilty of such conduct while performing only his own job function. In my brief review of the case law, it seems uniform that one or more warnings to an employee must be given before it can be said such activity “fractures” the employment relationship. Where dismissal does result after one or more warnings, the category of misconduct can be said to change from one of poor attitude to one of disobedience or insubordination.
The context in that case involved a bodyshop foreman/assistant manager who was forced to undertake the additional duties of bodyshop manager, who complained about the additional workload in front of staff and customers.  Thus, we see that griping in the workplace can be disciplinable, but even in the workplace it is relatively minor misconduct.

The more recent Nunavut case of Butschler v. Waters made an important distinction between the griping cases, determining that "an employee is entitled to complain about management to his co-workers so long as the complaints do not harm the well-being of the company", and complaints which harm the company.  In that case, there was evidence that the employee had complained and sworn about the management in front of co-workers and others, but in the absence of harm, and despite a provision in the contract that "public criticism" was grounds for dismissal, the Court found that there was no just cause.

Moving from simple griping to internet griping, let's look at a case where the employee did not name names:  In Wasaya Airways LP v. Air Line Pilots Association, Intl (Wyndels grievance), the grievor posted on facebook, "You know you fly in the north when...", and listed ten items which, while not reproduced in the decision, were apparently highly disrespectful to First Nations, which upset First Nation co-workers.  (As a side note, it does not appear that the grievor was actually disgruntled, but the post was a misguided attempt at humour.)  While the Union acknowledged that discipline was appropriate, it successfully argued that termination was not the appropriate response.  The Arbitrator noted that the note did not identify the airline, or anything specific to the airline, so unknown third parties reading the Facebook post would have had no reason to identify it with Wasaya.  However, the racist content of the post, given the demographic of the airline's employees and clients, justifiably created concerns for the airline, so the employee was not reinstated but rather compensated in lieu of reinstatement.

When we come to the posts that name names, however, we are into a very different framework.  Consider the case of Alberta v. Alberta Union of Provincial Employees, 174 L.A.C. (4th) 371, a grievance arbitration in which the arbitrator concluded:
While the Grievor has a right to create personal blogs and is entitled to her opinions about the people with whom she works, publicly displaying those opinions may have consequences within an employment relationship.  The Board is satisfied that the Grievor, in expressing contempt for her managers, ridiculing her co-workers, and denigrating administrative processes engaged in serious misconduct that irreparably severed the employment relationship, justifying discharge.
That a blog is a form of public expression is, or ought to be, self-evident. Unless steps are taken to prevent access, a blog is readable by anyone in the world with access to the internet. The Grievor took no steps to prevent access. On the contrary, the tone of her blogs placed them very much in the public arena and suggested that the Grievor relished addressing a wider audience.
Similarly, in Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (the Clarke grievance), an employee of a nursing home was terminated, and the termination was upheld, because she set up a web site, accessible to all, in which she disclosed information about the residents, posted photos of the residents, and made crude disparaging remarks about management and co-workers.
Having reviewed the evidence the conclusion that must be reached in this case is that by her actions Ms. Clarke has provided the employer with just cause to impose discipline on a number of grounds, and that the basis for the just cause are those reasons set out in the Employer's letter of termination. First, by a breach of the confidentiality agreement and disclosing residents' personal information on a blog accessible to the public. Second, by making insubordinate remarks about management, work procedures, management decisions, and the general running of the Home and placing these on a blog available to members of the public. Third, that the nature of her comments, their hostility, and the language used to express them, demonstrated a disregard for residents' need for care, and that this was conduct unbefitting a Personal Care Giver in a Home for the Aged, as well as it being inappropriate for her to make the critical comments that she did on a public blog about some of her fellow employees.
So, by contrast to employees who gripe quietly, employees who announce to the world their discontentment could well be saying goodbye to their jobs.

Posts Which Compromise Employer Confidentiality

Confidentiality, for most employers, is a serious matter.  This was a component of the above-noted Clarke grievance.  As with all confidentiality breaches, the employer will have to establish that there was a duty of confidentiality in respect of the information shared.  When the breach involves an internet post, however, certain elements of the case become much easier, in the sense that it is not difficult to establish the content of what was shared, and sharing confidential information with the world wide web will usually be pretty egregious.

As always, however, these things are contextual.  Depending on the nature of the information shared, and the reason for sharing it, the nature of the discipline called for will vary on a case-by-case basis.

Posts Which Otherwise Threaten to Bring the Employer into Disrepute

This is part of a larger framework as well.  The idea is that, while an employer does not usually have the ability to discipline for misconduct not related to the workplace, there is some conduct which is so reprehensible that the employer's reputation will be damaged simply by being associated with the employee.  In the union context, the test is set by the 1967 Millhaven Fibres Ltd. case:

In order to justify the discharge of an employee for off-duty conduct, there are five factors to consider:
(1) the conduct of the grievor harms the Company's reputation or product
(2) the grievor's behaviour renders the employee unable to perform his duties satisfactorily
(3) the grievor's behaviour leads to refusal, reluctance or inability of other employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and, thus, rendering his conduct injurious to the general reputation of the Company and its employees
(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its work forces.

This test was considered in the above-noted Wyndels grievance, and factored into the severity of the punishment which was called for in that case.

The Bottom Line

Employees are perfectly entitled to carry on an online existence, and the employer generally cannot assert total control of what they do online.  (I have seen occasional circumstances where a position requires a certain public image, which would likely be an exceptional case.)  Ultimately, however, employees must be careful not to conduct themselves in ways that will compromise the reputation of the employer or alienate co-workers.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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