Article by Carman J. Overholt, Q.C. and Emily Pitcher
The internet and the opportunities created by social media for business present many new challenges for employers and those involved in management of organizations. The rules defining appropriate standards for electronic communications continue to evolve. The standards reflect a balance between employee freedom of speech and the rights of individuals to work in a respectful workplace and not to be subject to communications or conduct that constitutes harassment. Although many employers have introduced written policies relating to technology usage and blogging, the law is evolving gradually to meet the needs of employers in establishing appropriate standards for electronic communications and blogging. A number of decisions of arbitrators, tribunal members and the courts provide needed guidance in this area.
Lougheed Imports Ltd. (c.o.b. West Coast Mazda) (Re), [2010] B.C.L.R.B.D. No. 190 ("Lougheed Imports")
In Lougheed Imports, the United Food and Commercial Workers International Union, Local 1518 (the "Union") alleged that West Coast Mazda had breached the Labour Relations Code in terminating two of its employees. The employees had made a number of posts on their Facebook profiles that ranged from venting about workplace frustrations to "offensive, insulting and disrespectful comments" about their supervisors. The Union argued that the terminations were at least in part motivated by anti-union animus and should therefore be overturned. The Board however agreed with the employer: the Facebook posts constituted proper cause for termination and West Coast Mazda had not breached the Code in terminating the employees.
The former employees, identified only as A.P. and J.T. due to the "embarrassing and offensive nature" of their comments, had been employed at West Coast Mazda for two and four years, respectively, and both were known to the employer as union supporters. The employer was given notice of the Union's application for certification on August 27, 2010 and the Union was certified shortly thereafter. As evidence of anti-union animus the Union pointed to the fact that it was also on August 27 that F.Y., a manager at West Coast Mazda and Facebook friend of both J.T. and A.P., began monitoring J.T.'s Facebook profile and keeping track of his work‐related posts. The Board accepted F.Y.'s claim that the timing was a mere coincidence and that J.T.'s Facebook status on August 27, which read "Sometimes ya have good smooth days, when nobodys fucking with your ability to earn a living ... and sometimes accidents DO Happen, its unfortunate, but that's why there called accidents right?", was J.T.'s first work-related post and the first to cause F.Y any concern.
J.T. continued to make work-related posts on his Facebook account over the following weeks and eventually removed F.Y. as a friend on the site. While this effectively meant that F.Y could no longer view J.T.'s profile, F.Y. continued to monitor J.T.'s posts with the help of a former employee who remained on J.T.'s friend list. The posts included aggressive and threatening statements, references to F.Y. as "a complete jack-ass", a "half-a tard", and "the Fixed Ops/Head Prick", and allegations that F.Y. was engaged in a sexual relationship with another male manager at West Coast Mazda. The Board found that A.P. had also encouraged people not to spend money at his employer's business because West Coast Mazda had "ripped off" customers in the past.
On October 6, 2010, the employer conducted separate investigatory meetings with J.T. and A.P. at which they were represented by the Union. Each employee was presented with copies of the Facebook postings and asked whether they had made inappropriate comments about the business or the managers and both J.T. and A.P. denied making the postings. The following day, both employees were advised that their employment was terminated and were given letters setting out the reasons which involved "making disrespectful, damaging and derogatory comments on Facebook" that were inappropriate and insubordinate, created a hostile working environment, and were likely to damage the reputation and business interests of the employer.1
The Union relied on ETL Environmental Technology, [1993] B.C.L.R.B.D. 216, for a list of factors to be considered in determining if a termination was motivated by anti--‐union animus. Among the factors is "the employer's previous attitude towards and treatment of similar conduct" which here, the Union argued, indicated a demonstrated failure to discipline employees for the racist, sexist, homophobic, and xenophobic comments often heard on the shop floor.2 The Board found that such comments were not "similar conduct" because there could be no serious expectation of privacy given that the Facebook posts were visible to everyone on the employees' Facebook friends lists (i.e. 377 of J.T.'s friends and almost 100 of A.P.'s) and the posts were therefore damaging to the employer's business.3 Similarly, calling the manager derogatory and insulting names was not similar conduct to the inappropriate comments made at the business on a regular basis.
The Board noted that while employees are entitled to their opinions, displaying opinions about work related issues "may have...
