We have all read a lot about employers monitoring employees’ computer use and whether employees can be fired for inappropriate computer use at work. What about inappropriate computer use at home? Can employees in Canada be fired for that? Two recent decisions say yes.
In both cases, one from Alberta and one from Ontario, employees were fired for blogging about their workplaces. Although the blogs were the employees’ personal blogs, the content in the blogs justified their terminations for cause.
The most recent case (Alberta Union of Provincial Employees v. Alberta) involved an administrative employee in the Alberta Public Service. Because of the nature of the material in the employee’s blog, the arbitration board hearing the employee’s grievance did not name the employee. So we’ll just refer to the blogger as the Grievor.
The Grievor started her blog when her therapist suggested that she write things down as a way to vent anger and helplessness following her father’s death. The Grievor’s three blog posts identified her by name, indicated that she lived in Edmonton, and that she worked for the Alberta provincial government. Interspersed with personal, nonwork postings were blog postings about the Grievor’s workplace, her supervisors, and coworkers.
In one of her blog entries, “Aliens Around the Coffee Table,” the Grievor made comments about the people at work. She devoted a paragraph to six of her coworkers who regularly met for coffee in a specific location. While the Grievor used aliases, the individuals were all identifiable. About a menopausal coworker, the Grievor indicated that if she “had to choose a planet that she came from, I’d say it was some dark planet, with very little oxygen . . .” About a “polite and very well dressed” male coworker, the Grievor said “I’m gonna go out on a limb here and say he’s from a planet in our solar system â€“ Uranus.” About a new employee, the Grievor said “she’s clearly from the planet â€“ Liar, liar pants on fire.” After making comments about three other colleagues, the Grievor said, “to any of my coworkers who didn’t appear in this accounting, be warned your turn may be coming.”
Sometime later, the Grievor posted a blog entry in which she was critical of management. She referred to her workplace as a “lunatic asylum”, her supervisor as “Nurse Ratched,” and the management as “a world like mine with imbeciles and idiot savantsÂ . . .Â running the ship.” On another occasion, she referred to her supervisor as the “Power Hungry Wench in Charge.” She repeatedly posted confidential internal memoranda and criticized the contents of the memoranda.
When confronted about her blogging, the Grievor was unapologetic and defiant, demonstrating little awareness of the hurt she had caused others. She defended her freedom of expression, refused to remove the blog posts, and threatened more postings after she was told that she had been fired. This was quite different from the conduct of another employee who had participated in the blogging (who was not fired). That employee had individually apologized to each coworker she had written about.
The arbitration board decided that the province was justified in firing her for cause.Â Although it indicated that the “Grievor has a right to create personal blogs and is entitled to her opinions about the people with whom she works,” the arbitration board said that “publicly displaying those opinions may have consequences within an employment relationship.” In the Grievor’s case, the board said that “in expressing contempt for her managers, ridiculing her coworkers and denigrating administrative processes, [the Grievor] engaged in serious misconduct that irreparably severed the employment relationship, justifying discharge.”
The content of the Grievor’s blog, the public nature of the blog, and the Grievor’s unapologetic and defiant behavior outweighed her clean work record, her issues following her father’s death, and her lack of intent to insult her coworkers.
The same result occurred in Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 in which an employee of a nursing home was fired for the contents of her blog.Â Although much of the blog site was devoted to personal matters unrelated to work, some of the posted material was insubordinate to management, derogatory and abusive toward coworkers, demeaning and disrespectful of patients, and disclosed confidential information about patients, including a photograph.
Like the Alberta case, the employee’s clean service record, family-related difficulties, and apology did not outweigh the content of the blog. The arbitrator concluded that the municipality was justified in firing the employee for cause.
So whether your employees are using work computers or home computers, if they post information in the public domain that undermines the employment relationship beyond repair, you may be justified in firing them for cause.
Karen Sargeant is a partner in the Toronto office of Fasken Martineau. She regularly advises and represents private and sector employers in all labour, employment law and human rights issues. Karen regularly appears before arbitrators, the courts and human rights tribunals on behalf of such employers. She writes articles and conducts many presentations for employers - on all aspects of labour, employment, human rights and privacy law.