There are a number of areas in which social media and employment interact. Statements denigrating
management are typically viewed by arbitrators as a type of insubordination. With the advent of
Facebook and other such sites, statements that used to be made and forgotten are now posted for all to
see.
Employees can be disciplined for making posts that poke fun at, threaten or harass co-workers.
If such discipline goes to arbitration, arbitrators, like judges, have the power to order production of
documents. Your Facebook account is a document, your cell phone records are documents and your
tweets are documents. Currently, in motor vehicle cases, judges are routinely ordering disclosure of
Facebook accounts.
Consider an employee who has been disciplined after getting into a fight with another employee. If the
employer knew that the two employees had been insulting each other on social media sites, then an
arbitrator would be hard pressed not to order disclosure of those documents.
Not surprisingly, employees who are terminated tend to have a lower regard for their employer than
previously. The very real danger is that an incident that an arbitrator would not consider grounds for
discipline will, when combined with inappropriate social media evidence, tip the balance in favour of
the employer.
One of the factors arbitrators look at in considering whether to reinstate a terminated employee is
whether the employee has shown genuine remorse. An apology by the terminated employee that is
viewed as genuine will go a long way towards making a finding that the employment relationship is
capable of restoration. An apology, however, that is tainted by Facebook posts setting out what a
complete bunch of idiots management are will likely not be viewed as genuine.
Social media, despite its phenomenal growth over the last decade, has not fundamentally changed the
employment relationship. Social media employment offences are, for the most part, employment
offences, even without the addition of the social media aspect. What has changed though is the scope
of, and an employer’s ability to obtain proof of, employment offences.
