organization and because Hutchings could be publicly identified as being its employee. This case has not been brought


before a judge or arbitrator. But it does raise the question, “Was the em- ployer justified in terminating Mr. Hutchings?”


What have arbitrators said? The first thing to know is that off-


duty conduct of any sort – including social media posting – may be con- sidered workplace misconduct if the conduct:


• harms the employer’s reputation • makes it impossible for the offend-


ing employee to perform his or her du- ties satisfactorily • results in other employees refusing


to work with the offending employee • makes it difficult for the employer


to carry on business efficiently Against this backdrop, consider the


following two cases in which an ar- bitrator upheld serious discipline for inappropriate social media postings, even when there was an indirect con- nection to the workplace:


1. In a blog in which he identified


his employer, an employee posted hateful messages about East Indians and several comments supporting Nazism. Upon discovering the blog, his employer terminated him for cause. An arbitrator concluded that, while there was no evidence of actual harm to the employer, because it was named in the blog there was a serious reputational risk to it. This justified the imposition of discipline but not termination. In reaching this conclusion, the ar-


bitrator considered the fact the com- ments did not directly target the em- ployer or its other employees (40% of whom were of East Indian descent) and that the employee had shown re- morse and apologized for his actions. According to the arbitrator, had the


blog entries represented the employ- ee’s “considered and actual views rath- er than the reckless ranting of an emo- tionally impulsive young person,” the termination would have been upheld.


2. An arbitrator ordered the “res- ignation” of an airline pilot who was


initially terminated as a result of a Facebook posting with a connec- tion to his employment. The employ- er was an airline owned by a number of First Nations and primarily served clients from First Nations communi- ties. Following his posting of a “top ten list” entitled, “You know you fly in the North when…” – considered by his em- ployer to be offensive and degrading to First Nations people – the pilot was fired, largely in light of the irreparable harm the posting could have caused the airline’s business. The airline successfully argued that


if the pilot were to be reinstated this could destroy the airline’s customer. The arbitrator agreed, finding that the


prohibited uses of social media 2. Remind employees that online


communications may be read by any- one (including their employer, co- workers and members of the public) 3. Reiterate the employee’s duty of


loyalty to the employer and any appli- cable internal policies concerning ha- rassment, IT/computer use, conflicts of interest and privacy, etc. 4. Prohibit employees from: a. Using company-owned resources


for social networking or blog activi- ties unless this type of social media is expressly allowed as legitimate work- place activity, in which case there should be clear parameters to the activity b. Disclosing confidential informa-


tion, including information relating to other employees or customers c. Posting material that may violate


the privacy rights of others d. Publishing negative comments


about the employer, other employees, customers and clients, and any com- ments that may negatively affect the employer’s reputation e. Warn employees that any breach


of the policy may result in discipline up to and including termination f. Advise employees if the employer


monitors social networking sites 5. Employers are also well advised to


consider: 6. Employers should also monitor


airline had a “substantial and warrant- ed” reputational concern in the event that members of the community it ser- viced became aware of the conduct in issue.


Tips for employers In this new frontier it is important


that employers proactively address the challenges created by social media. Remember that off-duty conduct may be considered workplace misconduct if the conduct negatively impacts the business. It is also preferable to have a work-


place policy that directly addresses so- cial networking. The substance of the policy should be tailored to the norms and culture of the particular work- place and, at the very least, achieve the following:


1. Clearly outline the permitted and


“cyberspace” to increase the chance of becoming aware of comments posted online that may negatively impact the company 7. Employers should maintain elec-


tronic and hard-copy records of of- fending postings to preserve evidence FBC


Adrian Jakibchuk and Matthew Badrov are lawyers with Sherrard Kuzz LLP, a leading em- ployment and labour law firm that represents management. For more information, call 416- 603-0700, 416-420-0738 (24 hours) or visit www.sherrardkuzz.com. The information contained in this article is pro- vided for general information purposes only and does not constitute legal or other professional advice. Reading this article does not create a lawyer-client relationship. Readers are advised to seek specific legal advice from Sherrard Kuzz LLP (or other legal counsel) in relation to any decision or course of action contemplated.


May/June 2013 Fitness Business Canada 37


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48