In 2012 Facebook celebrated its billionth user – effectively, one in seven people on earth are now “connected” on Facebook, posting all aspects of their personal and professional lives for the world to read and view. The odds are good that some of your employees, if not most of them, are using social media.
One recent case illustrates the scenario well. The employee was a social media and communications manager for the employer, an international athletics organization. The employee posted certain items on her personal blog and on the employer's Twitter account. The employer and its members felt these posts were inappropriate. The employer dismissed the employee without warning, alleging that she had breached its trust and that in aggregate her public communications had given it “cumulative” just cause to terminate her employment.
The employer's obligations
The BC Supreme Court found there was no just cause, and ordered that the employer pay five months’ reasonable notice to the employee for her two years of service. The Court noted that the employer had no social media policy. Although the employer had knowledge of the offending posts and had spoken with the employee about her communication style generally, it had failed to warn her that her job was in jeopardy should the misconduct be repeated. In fact, the employee was given a raise during the period the employer claimed she was giving cumulative cause to dismiss.
In order for the employer to rely on the noted incidents to found a cumulative just cause dismissal, the Court found it ought to have specifically referred to those incidents in issuing explicit warnings to the employee that her employment was in danger. Furthermore, having properly warned her, it ought to have given her a reasonable opportunity to improve her performance before following through on the warnings. In failing to do these things the employer wrongfully dismissed the plaintiff.
Establishing social media rules and expectations
What can an employer do to protect itself against exposure to public view by its employees? And what can it do about those employees who it thinks are inappropriately exposing its business to the world on social media? A few lessons can be learned from this particular employer’s mistakes.
First, every employer should have a social media policy that all employees have notice of and are required to read and sign. Like all policies with any force, the social media policy should clearly state the consequences that employees in breach will incur. Employers wanting their social media policy to have contractual effect will need to take extra steps to incorporate the terms of the policy into the existing employment contracts, and should seek legal counsel to ensure this is achieved.
Secondly, when disciplining or terminating employees whom the employer thinks have given just cause to dismiss by their social media (or any) activities, the employer must communicate the required standard of conduct to the employee, refer to the exact misconduct in question and clearly warn the employee that further similar misconduct will jeopardize their employment, and give the employee a reasonable opportunity to improve their performance. This is best done in writing and kept on record for future reference. If the employee’s performance does not improve, or the misconduct persists, then the employer is better able to rely on its written warnings to dismiss the employee for cause. Where the employer has failed to follow these steps and then dismisses for cause, it is likely to find itself at the wrong end of a wrongful dismissal claim.
Even the best employer can't stop dismissed employees from issuing proceedings against it. However, a soundly drafted employment contract and policy manual, together with a well orchestrated and correctly implemented system of employee discipline, will keep the employer on the right side of the law.
Employees: tweet with care
Regardless of whether their employer has a social media policy, employees should use caution and good judgment when posting on social media - whether on their personal account or on behalf of their employer. Just because the employer shouldn't dismiss them for cause, doesn't mean they won't. Furthermore, an employee who is warned about their social media activities should take the warning seriously, even if it does not specifically mention that their job is in danger.
About the Author
Julianne graduated from the University of British Columbia with an undergraduate degree in Political Science, and graduated with Distinction from the Oxford Institute of Legal Practice in Oxford.
