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Wrongful dismissal highlights need for clear social media policy

Every employer should have a social media policy that all employees have notice of and are required to read and sign
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In 2012, Facebook celebrated its billionth user; effectively, one in seven people on Earth are now connected on the social media site, posting all aspects of their personal and professional lives for the world to read and view. The odds are good that some of your employees, if not most of them, are using social media.

The odds of potential clashes between employees and employers over social media use have also risen.

The recent case of Kim vs. International Triathlon Union well illustrates one conflict scenario. Paula Kim, social media and communications manager for International Triathlon Union (ITU), wrote a piece on her personal blog that ITU felt disparaged a senior member of its staff. She also posted on her personal Twitter account a number of tweets that ITU and its members felt were inappropriate.

There were additional incidents that raised ITU’s ire. The employer dismissed her without warning, alleging that she had breached its trust and that in aggregate her public communications had given it “cumulative” just cause to terminate her employment.

The BC Supreme Court found otherwise and ordered that ITU pay Kim five months’ pay in lieu of notice. The court noted that ITU had no social media policy.

Although ITU had knowledge of the offending posts, and had spoken with Kim about her communication style generally, it had failed to warn her that her job was in jeopardy should the misconduct be repeated. In fact, Kim was given a raise during the period ITU claimed she was giving cumulative cause to dismiss.

In order for ITU to rely on the noted incidents to found a dismissal on the basis of cumulative just cause, it ought to have specifically referred to those incidents in issuing explicit warnings to Kim that her employment was in danger, the court found.

Furthermore, having properly warned her, it ought to have given her a reasonable opportunity to improve her performance before following through on the warnings. In failing to do these things the employer wrongfully dismissed the plaintiff, the court said.

What can an employer do to protect itself against exposure to public criticism by its employees? And how can it discipline those employees who it thinks are inappropriately exposing it to the world on social media? A few lessons can be learned from ITU’s mistakes.

First, every employer should have a social media policy that all employees have notice of and are required to read and sign.

Like all policies with any force, the social media policy should clearly state the consequences that employees in breach will incur.

Employers wanting their social media policy to have contractual effect will need to take extra steps to incorporate the terms of the policy into the existing employment contracts and should seek legal counsel to ensure this is achieved.

Second, when disciplining or terminating an employee who the employer thinks has given just cause for dismissal by his or her social media (or any) activities, the employer must communicate the required standard of conduct to the employee, refer to the exact misconduct in question with a clear warning that further similar misconduct will jeopardize his or her employment and give the employee a reasonable opportunity to improve his or her performance.

This is best done in writing and kept on record for future reference. If the employee’s performance does not improve, or the misconduct persists, then the employer is better able to rely on its written warnings to dismiss the employee for cause.

Even the best policies and preparation can’t stop an employee from suing for wrongful dismissal.

However, a soundly drafted employment contract and policy manual, together with a well-orchestrated and correctly implemented system of employee discipline, will help the employer defend its business successfully. •

Julianne Yeager is an articled student at Yeager Employment Law.