A BC Labour Relations Board ruling that upheld a company’s dismissal of two employees over comments they made on Facebook could set precedent in future cases about employee behaviour in cyberspace, according to the lawyer who represented the company.
New Westminster-based Local 1518 of the United Food and Commercial Workers International Union had brought the case to the board claiming that the two detailing workers, who are members of the local, were wrongfully fired. They had been let go from their jobs at Pitt Meadow’s West Coast Detail & Accessory Centre because of their roles in the recent union certification of some of the centre’s employees.
The board, however, upheld West Coast’s dismissal. It concluded that the company fired the employees because of series of comments they made on Facebook that deteriorated from questionable banter about having a bad day at the office to homophobic slurs about management and slights about West Coast’s quality of service.
Donald Richards, the partner at Vancouver’s Farris, Vaughan, Wills & Murphy LLP who represented West Coast during the labour board hearing, said it’s the only case he’s aware of in Canada in which employees were fired for comments posted on Facebook.
He noted that there have been incidents – one in Ontario and one in Alberta – in which employees were terminated for postings they made on blogs.
He said that, as in those cases, this ruling applies general workplace principles to cyberspace.
“Before cyberspace, it was insubordinate to curse out your boss, but the law always found it to be worse when it was done in front of other employees,” said Richards.
“I was able to argue that this was the cyberspace equivalent of really cursing out the boss, not only in front of other employees … but also with a couple hundred members of the public looking on.”
West Coast, which is part of West Coast Auto Group, first discovered the Facebook postings through a manager who was Facebook friends with the two employees.
The dismissed employees, who the labour board referred to only by the initials J.T. and A.P. due to the “embarrassing and offensive nature” of their Facebook postings, had 100 and 377 Facebook friends, respectively.
Richards said the ruling also illustrates that employees can have no expectation of privacy on Facebook, even if the social network’s privacy settings are adjusted so that only their “friends” can view their profile.
“The very nature of Facebook is a sharing site,” said Richards. “So it’s very hard to argue that you have some expectation of privacy when the whole purpose of the thing is to share.”
Richards said the ruling is a warning to other employees that they can be held accountable for work-related cyberspace activities even when not on the job.
“These postings weren’t done on work computers or during work time, but, because of the nature of what was said, they had serious implications on their employment,” Richards said. “It cost them their jobs.”
One of the employees, A.P., claimed that someone else had made the postings on his account, but the board did not believe that claim.
The union claimed during the board hearing that West Coast provided little evidence that its firing of the employees was anything other than a form of union-busting.
The union argued that West Coast was maintaining a file of J.T.’s postings without discussing them with him, which was evidence that the company was following the union’s activity.
The board found otherwise. It ruled that given the offensive and egregious nature of the employees’ comments, their dismissal was warranted.
Local 1518 did not return calls for comment by press time.
To appeal the ruling, the union can file an application for reconsideration with the board.