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Facebook is the new water cooler

Legal Report: Labour & Employment
|Written By Robert Todd
Facebook is the new water cooler
Illustration: Dushan Milic

Canadian workers have been gathering around water coolers to complain about supervisors for as long as they’ve been taking afternoon trips to Tim Hortons. But only recently has the workplace grumbling emerged online, with the dawn of social media sites like Facebook. A recent British Columbia Labour Relations Board ruling, however, should make workers think twice before venting online about their bumbling bosses.

The case, Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union involved a series of incendiary Facebook postings by a pair of employees at an automotive detailing and accessory shop in Pitt Meadows, B.C. One of the employees, identified only as JT, had worked at the shop for four years, and was a key organizer in a campaign to establish a certified union at West Coast Mazda. The other, identified as AP, had worked at the shop for two years and was a union supporter.

The Facebook postings, referenced by B.C. Labour Relations Board vice chairwoman and registrar Allison Matacheskie in her ruling, began Aug. 27, 2010, the day the employer received notification that its workers were applying for union certification.

In the October 2010 ruling, Matacheskie said the postings contained “very offensive, insulting and disrespectful comments about supervisors and managers.” JT’s posts began with one that read, “Sometimes ya have good smooth days, when nobodys [expletive] with your ability to earn a living….and sometimes accidents DO happen, its unfortunate, but that’s why there called accidents right?” Another read, “If somebody mentally attacks you, and you stab him in the face 14 or 16 times . . . that constitutes self defence doesn’t it????”

He later announced his status as “stress relief anyone,” and proceeded to post the “top five kills” from the television show Dexter, which follows the life of a serial killer. Additional posts included references to a manager as “Head Prick,” insinuation of sexual activity between two managers, and suggestions that the shop sold inferior products. He also called his boss, “A COMPLETE JACK-ASS . . . not just Half-a Tard.”

In a posting on AP’s Facebook page, he called the shop a “[expletive] joke,” and urged people not to shop there as “they are [expletive] crooks and are out to hose you.” He later deleted his Facebook account.

Management conducted investigative meetings regarding the posts with JT and AP on Oct. 6, and both were fired the following day. The union alleged the employer lacked proper cause for the firings, and said the terminations were motivated by anti-union animus. Matacheskie disagreed, relying on the Ontario Superior Court’s 2009 ruling in Leduc v. Roman to determine that the complainants did not have an expectation of privacy. She said the Facebook postings were “akin to comments made on the shop floor.”

She also relied on a test laid out by the B.C. Labour Relations Board on how anti-union animus should be weighed, with a primary consideration being the manner in which the discipline was carried out. The employer allowed JT’s Facebook conduct to continue for several weeks, but that “does not mitigate against a finding of proper cause,” wrote Matacheskie.

Ted Kovacs, of Hicks Morley Hamilton Stewart Storie LLP in Waterloo, Ont., says Lougheed appears to be the first Canadian case involving a firing based solely on behaviour on Facebook. While decided in the employer’s favour, Kovacs says the ruling is not a green light. For example, labour relations statutes protect employees who comment on working conditions while attempting to organize. That may include comments regarding a supervisor.

Employers must also continue to conduct thorough investigations, says Judith Macfarlane of Bull Housser & Tupper LLP in Vancouver. At the same time, it’s crucial to avoid knee-jerk reactions to questionable posts, as employees may have reasonable explanations. “If you don’t do that, then you ultimately end up in litigation, the person can then come up with all sorts of reasons and explanations, and you’ll be stuck with them,” says Macfarlane.

David Roberts of Pink Larkin in Halifax, N.S., says Lougheed demonstrates the need for employees to learn how social media fits into traditional employment concepts, such as insubordination. “I think it’s going to become a growing issue, because you have more and more people entering the workforce who’ve grown up with social media,” he says. “It’s going to be an educational process for them to understand that the way they may have dealt with their friends while they were in school should not be the way that they deal with their fellow workers.”

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