Media
Continued From Page 10
Workplace social media policies
Wholesale Union, Local 580,
[2008] B.C.C.A.A.A. No. 22,
adopted the same reasoning. The
blog postings were sympathetic
to Hitler and identified the company as the blogger’s employer.
The employer argued that discharge was justified because of
the offensive, racist and hateful
entries in the blog and because
the grievor, by naming the
employer and including pictures
of himself at work, had harmed
the employer’s legitimate business interests and its reputation.
The union argued that the postings on the blog occurred entirely
off-duty and that there was no
connection between the business
interests of the employer and the
employee’s conduct.
The arbitrator held that there
was a connection between the
blogging and the business interests of the company; however,
there were sufficient mitigating
factors to justify a reduction in
the disciplinary penalty of discharge and the grievor was
reinstated without compensation.
Often the context and content of social media use will be
important. One Ontario decision, Chatham-Kent (
Municipality) v. National Automobile,
Aerospace, Transportation and
General Workers Union of Canada (CAW-Canada), Local 127,
[2007] O.L.A.A. No. 135,
upheld the termination of an
employee for breach of a confidentiality agreement, insubordination and conduct unbefitting a personal care giver
because of the contents of her
Here are some tips on how to create effective policies:
Involve all departments when
drafting a social media policy.
BUSINESSMAN BY PIU99 / DREAMSTIME.COM, KEYBOARD KEYS BY ITAESEM / ISTOCKPHOTO.COM
Workplace social media policies must be understood by both employers and
employees, and should state what will happen if the policies aren’t followed.
blog. The employee posted comments about her employer and
the conditions in the retirement
home where she worked, as well
as personal information about
residents in the home without
their consent. In dismissing the
grievance, the arbitrator held
that her comments were insolent, disrespectful and contemptuous of management and were
an attempt to undermine the
reputation and authority of
management.
A careful review of the par-
ticular workplace was under-
taken in the case of an airline
pilot with a company owned by a
number of First Nations, Was-
aya Airways LP v. Air Line
Pilots Assn., International,
[2010] C.L.A.D. No. 297. The
employee was discharged after
posting derogatory comments
regarding the company’s owners
and customers on Facebook. In
calling for a contextual approach,
the arbitrator noted that the
individual using social media
must be assumed to have known
that there is potential for virtu-
ally worldwide access to those
statements. The arbitrator con-
cluded, however, that while the
grievor’s misconduct was deserv-
ing of some penalty, the postings
were intended to be humorous
and there were several mitigat-
ing factors.
Draft social media policies
broadly enough to cover
technology that will be introduced in
the future. Policies should not only
cover the material on the company
blog, or company Facebook or
Twitter account, but should cover
the appropriate use of one’s
personal blog, Facebook page or
Twitter account. The policy must
clearly state that it is not restricted
to use from work computers or
devices and applies to use of social
networking sites on employee time.
online can spread despite the
removal of the original posting. If
mentioning the company name,
which in some cases should be
discouraged, employees ought to
use a disclaimer that the opinions
expressed are not those of the
organization.
The policy and its
enforcement should be clear
to all employees. It is important to
clarify what disciplinary action will
be taken, up to and including
termination, if policies are
not followed.
Educate employees on the
legal and security risks
involved in social media and what
they can do to protect themselves
and the company. Emphasize the
need to use caution and good
judgment as comments posted
The policy should be simple
and accessible. Employees
will not be inclined to read through
an overly lengthy manual. Circulating
the policy regularly and making the
policy readily available, both
electronically and in hard copy,
is also suggested.
media to brand themselves and
expand market research, whereas
others are simply trying to protect themselves from potential
legal and security risks and control employee productivity.
Regardless of the type of policy
implemented, it must be well
understood by employers and
employees alike.
With social networking sites
becoming more prevalent, the
need for a social media policy
cannot be understated. It is a
delicate balance between
restricting the employee’s right to
freedom of expression and pro-
tecting the employer. n
George Waggott is a partner in
the McMillan LLP Employment
and Labour Relations Group in
Toronto. He advises employers
nationally on employment law,
labour relations and executive
compensation.
Common issues ‘would be overwhelmed or subsumed by the individual issues’
office, including staff budgets
and developing market plans.
The business development agent
was primarily a sales role.
Finally, the relationship development agents and customer care
agents focused on customer service needs. The compensation
system was also amended.
The representative plaintiffs
were all provided with the option
of continuing at Allstate in the
capacity of business development agents. They rejected the
offer, resigned from Allstate
alleging that the revised business model unilaterally changed
fundamental terms of their
employment contracts and commenced a class action. Specifically, the plaintiffs alleged that
the changes amounted to constructive dismissal and sought
termination and/or severance
pay, relying on the provisions of
Kafka
Continued From Page 11
the Ontario Employment Standards Act, 2002 (ESA).
The class action
certification motion
In January, a certification
motion was brought before the
members of the proceeding.
The findings
Madam Justice Horkins held
that the plaintiffs were successful in
showing that both a cause of action
and an identifiable class of two or
more persons existed, thus meeting
the first two steps of the test. However, serious concerns were raised
on the commonality of issues. Central to her concerns was whether
Allstate’s changes to their business
model amounted to a fundamental
change to the class’ employment
terms, thus constituting a constructive dismissal under the ESA.
She held that a determination of
whether the new model brought
about a fundamental change would
depend on individual findings of
fact for each class member. More-
over, she emphasized that the law
itself requires an individualized
inquiry to prove a constructive dis-
missal: “it is the degree of the
change which is critical to assessing
whether altered job duties amount
to a fundamental breach of the
employment contract.”
A second significant concern of
Madam Justice Horkins was how
the court would assess whether the
plaintiffs had mitigated their dam-
ages. The ESA regulations stipulate
that an employee who refuses an
offer of reasonable alternative
employment is not entitled to sev-
erance and termination pay. The
key word which has to be addressed
is “reasonable.” Without an individ-
ualized inquiry, it would not be
possible to determine the reason-
ableness of the job that Allstate
offered to its agents.
Soma Ray-Ellis is a partner
and co-chair of the Employment
and Labour Group at Himelfarb
Proszanski LLP in Toronto. She
is also the author of Halsburys
Laws of Canada-Discrimination
and Human Rights and the
Federal Equity Manual. She thanks
Daniel Siu, a student-at-law at
the same firm, for his assistance
with this article.
