Disciplinary action against an employee after a comment on Facebook. Where is the limit ?

14 janvier 2016

( Disponible en anglais seulement )

Author: Raphaël Viens Côté

In a recent arbitration decision, Centre de la petite enfance Allô mon ami c. Le Syndicat de la Nouvelle Union (CSQ), 2015 QCTA 749, the question was once again tackled.

The employer is a kindergarten operator with three establishments (the “Employer”).

On April 5, 2013, an educator (the “Employee”) wrote on her Facebook page: “Hell of a bad day”. A parent of a child in the Employee’s group, who is also the Employee’s Facebook friend,  saw the post, got worried that the post was connected to an event at the kindergarten and contacted the Employer. Even though the Employee explained to her Employer that said post was unrelated to her professional life, the Employer gave her a verbal warning not to write on Facebook any comments whatsoever, positive or negative, that were related to her job.

On September 4, 2013, the Employee, apparently willing to share that she was returning to one of the Employer’s establishments where she had had better times, wrote on her Facebook page: “Dear friends of Vanier, I will be back amongst you on September 16 with the monkeys, I cannot wait to see you back!!!”. This comment in itself was not really problematic for the Employer nor for the arbitrator Denis Tremblay.

Unfortunately, a Facebook friend of the Employee commented on the post: “You quickly got bored with Lebourgneuf or there is one person who decided to spare no efforts to make your life miserable”.

The Employee “liked” this Facebook friend comment and replied “I am returning by choice, no one pissed me off directly

Given the “like” and the reply, the Employer gave the Employee a warning and a one day suspension.

The Employee filed a grievance.

Addressing summarily the first verbal warning the Employer gave in April 2013, the arbitrator found that it should only have encompassed negative comments.

Concerning the grievance, the arbitrator found that even though the Employee had no control over the comments of her Facebook friend, the “like” and the comment “no one pissed me off directly” were doubtful and had been done in contravention of the April warning. This being said, the arbitrator cancelled the one day suspension and modified the sanction by a written reprimand to the employee’s file.

Before giving a disciplinary measure, employers can always contact a Labour and Employment lawyer at Miller Thomson to obtain legal advice.

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