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Why employees should think before they tweet

'The law here is very employer-friendly right now, and employees are getting caught all the time,' Toronto lawyer Dan Michaluk says.

Tim Fraser for The Globe and Mail/tim fraser The Globe and Mail

The day after he used his Twitter account to denounce same-sex marriage, Damian Goddard lost his job as a broadcaster with Rogers Sportsnet, igniting a debate about the right of employers to fire workers for their tweets or Facebook posts.

But Mr. Goddard is just the latest high-profile case involving social media to catch the attention of employment lawyers, who say the contents of Facebook and Twitter accounts are now a regular component of disputes over dismissals.

More and more cases involving the firing of workers for what they say online have been surfacing before labour tribunals in recent years - creating an entire new category of dispute that did not exist a decade ago.

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Many employees, experts say, seem unaware that, under current Canadian law, their employers hold most of the cards: Employees can be fired or disciplined for venting workplace frustrations or lambasting their bosses while online, even if they are doing it for their own Facebook friends and Twitter followers, on their own computers, and after hours.

"The law here is very employer-friendly right now, and employees are getting caught all the time," said Dan Michaluk, a Toronto lawyer with Hicks Morley Hamilton Stewart Storie LLP, who regularly handles employment cases involving things employees say online.

He said online comments can create conflicts of interest between employees and employers, such as when broadcasters or teachers take controversial stands that could affect the reputation of their employers, or their ability to do their jobs.

Criticizing bosses online can violate the legal "duty of loyalty" that employees owe their employer, Mr. Michaluk says. A worker can always be fired without cause, but must be paid severance. But egregious Facebook posts or angry tweets about supervisors can be considered just cause, meaning workers can be shown the door with no severance. Even with the protection of a union, blasting the bosses online can also mean losing your job.

The full details of Mr. Goddard's case - which involved a comment on a social issue, not his employer - aren't known. Earlier this month, Mr. Goddard weighed in on a Twitter debate over National Hockey League player Sean Avery's outspoken support of same-sex marriage. A hockey agent, Todd Reynolds was critical of Mr. Avery's position, and Mr. Goddard joined in.

"I completely and whole-heartedly support Todd Reynolds and his support for the traditional and TRUE meaning of marriage," Mr. Goddard, who says he is a Roman Catholic, wrote.

He was let go the next day. His employers put out a statement that appeared to dampen suggestions he had been fired for his Twitter activity, pointing out that he was a freelance contractor and saying that "in recent weeks it had become clear that he is not the right fit for our organization."

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The statement from Rogers Sportsnet said it would not comment further on "a confidential personnel matter" but added that "views expressed by Mr. Goddard on Twitter are his own and do not reflect the views of Rogers or Rogers Sportsnet."

Mr. Goddard, who told the Toronto Star that he stands by his comments, has said little else publicly since he was let go. His Twitter feed has been silent since May 12, when he thanked supporters, said he would pray for his critics and added that he was "so thankful for my Roman Catholic faith."

While Mr. Goddard's case got a lot of attention, among employment lawyers the most discussed social-media case involves two workers at an auto shop west of Vancouver who launched vitriolic, defamatory attacks on their bosses via Facebook.

Unfortunately, one of the workers' bosses was a "friend" of the employees on Facebook, meaning he could read their updates on the social media website. (He was later "unfriended," but monitored the posts through another friend's computer.) Last year, the B.C. Labour Relations Board upheld the firing of the two workers with cause, despite the fact that one had been an organizer in a recent union drive and the union had argued that managers were pursuing him because of this.

According to the decision, the pair ranted in threatening, defamatory Facebook posts, using obscenities and homophobic slurs, saying the business was run by "crooks" and "low-life scumbags." One of the workers, under the comment "stress relief, anyone" posted a link to a list of "the top five kills" on the TV show Dexter, which is about a serial killer.

Louis Sokolov, a lawyer with Sack Goldblatt Mitchell LLP, which represents unions and employees in labour-law cases, said the law is the same, whether the attacks are made online or the old-fashioned way, in person.

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"The significant part of it isn't so much that it's on Facebook," Mr. Sokolov said. "Had they paraded in front of their employer's premises with a sign that said 'My employer's a criminal,' you would have expected them to be treated in a similar way."

Many lawyers say employers need to draft policies to govern how employees use social media, and enforce them, both to protect their reputations and to help educate their workers on what their rights and responsibilities are.

They also need to keep closer tabs, said Stuart Rudner, a lawyer with Miller Thomson LLP, on what their employees are doing online. Monitoring employees' social-media activity, especially problem employees, is also becoming a more common practice, he said.

"I think the reality is that a lot of organizations, especially if they are of a certain size, are constantly monitoring what is being said online, be it by employees or customers or anybody else," Mr. Rudner said. "They are very much aware of their brand."

Mr. Rudner said employees' Facebook pages and the like can also be of immense use in workplace investigations: "If you have an employee you're suspicious of, you know, the guy who always calls in sick on the Friday before a long weekend, it's not inconceivable that they're going to post pictures from their Vegas weekend on Facebook."

Compounding the fact that what used to be relatively private griping by the water cooler is now being broadcast online is a general ignorance about defamation, says Michael Smith, a litigator with Borden Ladner Gervais LLP in Toronto.

He says many people - including celebrities - seem unaware that they could be sued for damaging someone's reputation with reckless tweets or Facebook posts. For example, rock musician Courtney Love recently settled a defamation suit for $430,000 (U.S.) over tweets she had made. "People are behaving online like they would talking with a buddy in a bar," Mr. Smith said. "There's very little thought that goes into the comments before you press send, or you press post."

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More

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