What you say online can come back to haunt you. This is what Justin Hutchings now realizes after being terminated by his employer for morose comments posted on a facebook page for deceased teenager, Amanda Todd.
Justin Hutchings, an employee at a London, Ontario clothing store, Grafton-Fraser Inc., was terminated after his employer was made aware of comments Mr. Hutchings posted on a facebook page created for deceased teenager Amanda Todd. As many are aware, Ms. Todd recently committed suicide in response to online bullying. Mr. Hutchings accessed a facebook page, set up as a memorial to Ms. Todd, and wrote “Thank God this b—- is dead.” A concerned citizen read the remarks and conveyed them to management at Grafton. One of the factors the employer considered in dismissing Mr. Hutchings is that he violated the company ethics of “…tolerance, respect and fair and honourable treatment of all individuals, internally, with our customers and the population as a whole.”
In today’s workplace we are frequently seeing issues of free speech and privacy coming into conflict with an employer’s interest in protecting its reputation. The emerging case law in this area would suggest that some comments on facebook will give rise to termination for just cause. However, Courts and arbitrators will take a contextual approach to these issues and examine whether or not the online remarks are derogatry and damaging, did they take place over a prolonged period, were they deliberate or reflect a momentary lapse of judgement, and also whether or not the employee expressed remorse. In addition, the traditional factors such as the age and years of service of the employee will be considered in assessing whether or not the misconduct in question is serious enough for the employer to dismiss, for just cause.
What Employers Need to Know:
1. Ensure that you have a social media policy in place and make employees aware of the policy so that you are in a position to hold employees accountable for their activity on social media sites.
2. When you become aware of potential online misconduct, bring it to the attention of the employee and give them an opportunity to respond. Many individuals access social media sites using a smartphone and there is the potential that an offending comment was made by a third-party simply taking posession of the employee’s phone and posting the remark. By gathering the necessary facts, you are in a better position to determine the appropriate response.
3. Consult an employment lawyer before taking steps to discipline or terminate an employee for online misconduct. Courts and arbitrators will evaluate each case on its own facts. The sensitivity to disparaging remarks made online may influence an employer to dismiss an employee for cause. However, depending on the facts, this course of action may prove more costly for an employer in the long run. As such, it would be wise to consult with an employment lawyer and get some guidance on the best way to move forward.
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