The intersection of social media and contemporary workplace law in Canada

There isn't a lot written about the intersection of social media and the impact on contemporary employment law in Canada. This is surprising given the ubiquitous nature of Facebook, Twitter, and Myspace in Canadian workplaces. It may well be that lawyers aren't that comfortable writing about a technology they don't fully comprehend yet or that it wasn't taken seriously until a month ago. Given the impact of social media on young people it's an area of research that calls out for attention considering how it cuts across the areas of employment, labour, human rights, and privacy law. 

Towards this end I've culled various online resources about contemporary workplace law in relation to social media and the growing body of case law in Canada. This post doesn't fully capture the complexity of intersection of social media and the law. It does however pull together many of the key decisions that are emerging from arbitrators and the Courts in relation to disciplining employee for improper use of social media and highlights some interesting cases that could be used in the context of employment litigation.

There doesn't appear to be a Canadian case explicitly addressing the role of social media in relation to a termination in a non-unionized setting, a growing body of case law from arbitrators exists. The basis of the law is rooted in the principles related to off-duty conduct, in both a unionized and non-unionized setting. Off-duty conduct is a concept that essentially allows employers to discipline employees for actions that take place outside the workplace after hours and can range from criminality to drug use to sexual harassment at Christmas parties.

Key cases from a unionized context addressing discipline for misuse of social media include: Re Wasaya Airways LP and Air Line Pilots Association, International (Wyndels), (2010), 195 L.A.C. (4th); Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (B.C. L.R.B.); EV Logistics v. Retail Wholesale Union, Local 580, [2008] B.C.C.A.A.A. No. 20 (Laing); and Alberta v. Alberta Union of Provincial Employees [2008] A.G.A.A. No. 20 (Ponak). Reviewing these cases will give one a good sense of where the law stands in a unionized context and what arbitrators feel is just cause for a termination.

From the non-unionized context Kelly v. Linamar Corporation, 2005 CanLII 42287 (ON S.C.) deals with a situation where an employee was terminated with cause after being charged with possession of child pornography. Some additional cases from outside the employment law include: Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII) deals with the right to freedom of expression in relation to Facebook; Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) which is about the Plaintiff's obligation to produce their Facebook pages; Terry v. Mullowney & Terry v. Sinclair, 2009 NLTD 56 (CanLII) is where the Defendants counsel successfully used Facebook printouts to impeach the Plaintiff's credibility during cross-examination; and, Spark v. Dube, 2011 NBQB 40 where the Court issued an ex parte order to the Plaintiff to ensure the preservation of the contents of her Facebook pages - Dan Michaluk has written a great summary.

What employees and employers can take away from the current state of the contemporary workplace law in Canada in relation to social media is the following: (1) the law is in a state of flux and is unsettled; (2) there is a need to be extremely careful when posting personal information online; (3) that for young employees there are numerous barriers to contesting a wrongful dismissal over comments made on social media, such as: risk, cost, time, and stress; (4) proactive organizations should adopt social media policies that explicitly tells employees what behaviours are condone and what aren't; and, (5) that the millennial generation increasingly views social media is a must have in the workplace and is oblivious to the many key considerations when it comes to privacy. 

For previous articles on social media, see: here, here, and here. Take a look at what management side law firms are saying about social media in workplaces: Rubin Thomlinson LLP's Social Networking: What Employers Need to Know; Ogilvy Renault's Inappropriate Facebook Use Leads to Termination of Employees; and, Old wine in digital bottles from Heenan Blaikie LLP. If you have any comments about social media in the workplace send me an email.