Wrongfuldismissal: Social Media In The Spotlight
17, December 17, 2015 - Filed in: Court Cases
We now have what appears to be the first wrongful dismissal [decision] dealing with a termination for Twitter and Facebook comments. As in the grievance arbitration, there is an important takeaway for employers in the employee's successful wrongful dismissal claim. Here's the key point:
Thus, even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff's termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff's termination because ITU did not give the plaintiff an 'express and clear' warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her. I should also say in this regard, that counsel for ITU conceded that ITU should not be able to rely upon the proof of the truth of the content of Mr. Beeche's letter in support of its position on cumulative cause, as he was not called to testify as a witness at the trial. In fact, the plaintiff's alleged conduct complained about in the letter was not even brought to her attention until after her termination.
The plaintiff, a Senior Manager of Press Communications, was terminated on November 20, 2012 and claimed in her statement of claim that her termination was sudden and "without advance warning". At the time of termination, the plaintiff was 34 years old and earning a salary of approximately $80,000 per year. She had been employed with the employer for two different periods: the first period was less than two years when she quit and took another job, the second, three years later, was also just short of two years in length. The plaintiff argued that reasonable notice should be assessed based on the combination of these two periods of employment.
The employer's defence was that the plaintiff's conduct in the months leading to the termination of her employment was unprofessional and insubordinate and that she had "irreparably harmed the trust inherent in the employment relationship through her unprofessional and insubordinate communications that were far-reaching and accessible to those throughout the triathlon sport community". It was the employer's view that the plaintiff was its "voice" and the "severity of her communications" was heightened as a result.
What did she say on social media?
The plaintiff had Facebook, Twitter accounts and a blog. Most of the ITU employees were her Facebook friends. One of her Twitter accounts (PK24/7) was a personal account and the other (Paula Kim ITU) for ITU matters.
- October 23, 2012 Facebook posting:
- 2012 ITU season ... DONE. now leave me alone until 2013!!
- Undated Twitter and October 22 and November 4 Twitter posts:
- surprisingly fun congress after-party last night. probly [sic] only time I'll see so many Eboard members hungover & lamenting those tequila shots
- I wonder if other IF congresses have as much propaganda as ours...
- Hey ITU, remember this next time I fly off the deep end...@Relationship 102: If I didn't care, I wouldn't get mad
The plaintiff said her Facebook message was written in a facetious joking manner reflecting her sense of humour and that she was trying to be funny. She said that the ITU employees were familiar with her humourous style. She said this message was never discussed with her by anyone at work.
The plaintiff said the Tweets were meant to say that she had a fun time with staff and that it was a reflection on an atmosphere and environment in which the ITU and federations interacted. Again, she said she received no comments from anyone about this tweet and no indication that it was inappropriate. Her use of the word "propaganda" meant "marketing or messaging" using her "ironic sense of humour". Again, she said she received no comments about this tweet. As for the third tweet, she claimed this was her way of explaining why she was so emotional. She had no ill intention with this tweet and did not hear from anyone at work about it. There was no indication that this tweet was frowned upon.
On October 5, 2012, the plaintiff wrote a blog entry called "taking shit" that was generally about her mother who she described as utterly abusive toward her and how she was haunted by that abuse, had recovered somewhat "but now thanks to my current boss, it is back in full force. and as my former colleague used to say, the spirit is broken". She said that a conversation she had with her "boss" was disappointing and reminiscent of disagreements she had with her own mother. The plaintiff testified that the people who read her blog were close friends and that no one at the workplace asked her about or talked to her about the blog post except one employee who talked to her out of a personal concern.
On November 20, 2012 the plaintiff was terminated. At the termination meeting she was told that her communication style was not in line with ITU.
What did the court say?
The Kim v. International Triathlon Union decision is a long one at sixty-six pages and 230 paragraphs. Our summary of the decision merely touches on the surface of the personalities and other dynamics at play between the parties. We recommend that you read the full decision found at the link above to gain further understanding of what happened during the employment relationship and after it ended. The court ultimately found in favour of the plaintiff by distinguishing a number of similar conduct cases saying that in those cases the employee had either received specific notice criticizing the employee's conduct before termination, or the employee ought to have clearly understood from the surrounding circumstances that their job was in jeopardy if their misconduct continued. In this case, the court said, the facts were quite different:
...To the extent that ITU considered the incidents relied upon for cumulative cause amounted to insubordination or other misconduct, the evidence is that from January 2011 until her termination on November 20, 2012, no written or oral warning was given to the plaintiff that the impugned social media posts were inappropriate and unacceptable and that if she did not cease and desist from such performance and change her ways that her continued employment was in jeopardy. On the contrary, she received an increase in her compensation, was permitted to continue in her position even after the October 5th blog, and at the time of her dismissal with notice she was merely told that her communication style did not align with that of the ITU.
The employer's argument that the plaintiff's experience in the field of communications and the fact that she held a senior management position did not support the employer's argument because although she was spoken to on occasions about her communication style in general terms, the evidence was clear that she had never been reprimanded, disciplined or criticized for the posts that the employer relied upon for cumulative cause.
The court concluded that the employer failed to meet its onus of proof to establish cumulative cause for dismissal and awarded the plaintiff, five months notice less mitigation income based on her second period of employment with the employer of twenty-two months.
What can we learn from this case?
There are at least two lessons for employers in this case.
- Create and communicate your social media policies in the workplace and if something is subsequently viewed as offensive – deal with it sooner than later.
- Unless the offensive comments are egregious or destructive to the employment relationship, use progressive discipline.
Note: This a reprint of an article by Lisa Gallivant & Alison Strachan of Stewart McKelvey.