The Court Weighs In: Termination for Social Media Misconduct

Over a decade had passed since Ellen Simonetti, dubbed the "Queen of the Sky" was fired by Delta Air Lines after her infamous "Diary of a Dysfunctional Flight Attendant" blog. Simonetti wasn't fired simply for blogging about her interesting lifestyle or worldwide travel as a flight attendant. According to Delta Airlines she was terminated for associating her blog with the company and for including, what the company deemed to be, inappropriate pictures and material.

While that decision was settled out of court, it did stoke a debate between employees' freedom of expression and employers' rights to control the dissemination of their sensitive information and protect their reputation and brand.

This debate was rekindled recently in the British Columba Supreme Court decision in Kim v International Triathlon Union, 2014 BCSC 2151. Kim, a manager at International Triathlon Union (ITU), was terminated after making several negative blog, Facebook and tweet posts about her employer and her direct supervisor. In one blog, Kim compared her relationship with her supervisor to her alleged mistreatment as a child, saying she felt "like that kid all over again; beaten, discouraged, alone and scared."

ITU asserted that Kim's persistent public comments through social media were unprofessional, inflammatory, and insubordinate and evidenced a culmination of misconduct warranting cause for dismissal. In its estimation, Kim ought to have voiced her concerns regarding the organization and her supervisor internally to the board of directors, rather than disseminating her negative views of ITU to a worldwide audience and, given her senior communications position, ought to have known better than to misuse social media as she did.

However, Kim was successful in her wrongful dismissal claim, asserting that her posts were written in a facetious joking manner that ought to have been apparent to her supervisor. Kim claimed that ITU did not have a social media policy and had not given her sufficient warning that her posts were considered by the organization to be inappropriate, and would lead to her dismissal.

There are three key points to take from this decision. First, this case considered termination for cumulative misconduct, not a one-time event. There are arbitral decisions involving sufficiently egregious social media posts that warrant summary dismissal (See Toronto (City) v Toronto Professional Fire Fighters' Association Local 3888; United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc.).

Second, the court is not granting employees a free pass to disclose confidential information or to allow the airing of workplace grievances on social media. Rather, the courts are simply reminding employers that disciplinary action for an accumulation of social media misconduct must follow the established course of progressive discipline:

1. The employer has established a reasonable and objective standard for workplace conduct, including the disclosure of company information on social media;
2. The employee has been given an express and clear warning about her conduct;
3. The employee has been given a reasonable opportunity to improve her performance; and
4. Despite a reasonable opportunity and final warning, the employee has failed to remedy her performance.

Third, as indicated in this case, and similar arbitral decisions, the courts and arbitrators will consider whether the employer had a written policy as a means to provide employees with notice of social media expectations and consequences for misuse. Keeping a current, clear and comprehensive workplace policy governing the use of company technology (computers, personal devices and internet) and the use of social media to disclose sensitive or confidential workplace information will help avoid this result.