One
of the most important rights of an employer is the ability to take disciplinary
actions against an errant employee. Usually, the employment contract will
stipulate actions that are offensive and the punishment to be applied upon such
offensive behaviour. The most common forms of disciplinary actions in the
workplace includes; warnings, queries, suspension, termination and in extreme
cases, summary dismissal.
With
the increasing use of various social media platforms such as facebook,
instagram, twitter, linkedin and the likes, the question of how far an employee
can go on these platforms, before disciplinary actions can be taken out against
him, has often arisen. As social media continues to gain in popularity, it was
only a matter of time until it became a workplace issue. Because social media
is so persuasive, employees and employers can both benefit from a greater
understanding of both on-duty and off-duty social media use.
The
law has long allowed an employer to discipline an employee for offensive
off-duty conduct. The level of consequence would however, depend on the
seriousness of the impact of the employee’s conduct. Usually, the impact
such behaviour has/had on the employer’s business, is often considered, to
ascertain whether the punishment imposed, is justifiable. Social media acts
that lead to any of the following may attract justifiable punishment;
1.
Harm to the
reputation of the business or its product;
2.
Other
employees refusing or being reluctant to work with that person;
3.
A serious breach
of the law; and/or
4.
Disruption of
the otherwise efficient management and function of the workforce.
However,
employers must ensure that the disciplinary step taken, fits the impact of the
offensive social media conduct. For example, in Amalgamated
Transit Union, Local 508 v Halifax Regional Municipality (HRM), 2017 CanLII
10897, an HRM bus driver made inappropriate Facebook posts when she was off
duty. The comments portrayed a particular community on her bus route in a very
bad light and the Employer worried that these comments would harm the
reputation of Halifax Transit. The Employer dismissed the employee on the basis
of this. To draw the connection between the off-duty Facebook posts
and work, the Employer led evidence of co-workers from that community who were
deeply offended by the comments and said they would not work with the “grievor”
again. Some of the co-workers saw her posts, and they shared it with other
co-workers. Further, co-workers testified that they were very upset by the
posts, and that the posts led to disruptions at the workplace and conflict
between employees. The arbitrator readily concluded that the “grievor’s” post
had a “real and material connection to the workplace”.
The
arbitrator also found that the grievor’s post had significant potential to harm
the Employer’s reputation. She specified that her conclusion was not based on
evidence of widespread harm but rather “as a matter of common sense, it is
reasonable to conclude that” the “grievor’s” posts would be upsetting to residents
of the community she maligned.
Based
on those conclusions, the arbitrator found that the “grievor’s” conduct
warranted some discipline. However, she felt that the damage to the Employer’s
reputational interests was not so substantial that the “grievor’s” on-going
employment was untenable. The arbitrator went on to consider the impact of any
potential mitigating factors. She subsequently concluded that the termination
was not warranted and she imposed a 30-day unpaid suspension instead.
Also,
in the American case of, In the Matter of the Tenure Hearing of
Jennifer O’Brien, State Operated School District of the City of Paterson,
Passaic County, +2013 N.J. Super. Unpub. LEXIS 28 (App. Div.
2013), the New Jersey Appellate Division affirmed the dismissal of Jennifer
O’Brien (O’Brien), a tenured first grade teacher in Paterson, New Jersey, based
on derogatory Facebook comments she made about her students. Frustrated that
the school was not addressing the behavioural and disciplinary issues of her
students, many of whom were African-American or Latino, O’Brien posted the
following on her personal Facebook page:
- “I’m
not a teacher – I’m a warden for future criminals!”
- “They
had a scared straight program in school – why couldn’t [I] bring [first]
graders?”
O’Brien
was subsequently removed by the school board and tenure charges were filed
against her. The Administrative Law Judge (ALJ) and Acting Commissioner of
Education determined that O’Brien’s actions warranted her removal. The ALJ
found that O’Brien engaged in “conduct unbecoming a teacher” and
“failed to maintain a safe, caring, nurturing, educational
environment.”
The
appellate court agreed with the ALJ’s findings that the seriousness of
O’Brien’s conduct warranted her removal and that the Facebook postings were not
protected by the First Amendment because O’Brien was not commenting on a matter
of public concern, but personal interest. There was credible evidence to
support the notion that the district’s efficient operation of its schools
outweighed O’Brien’s right to free speech.
Another
example here, is the United Kingdom case of Crisp v. Apple Retail (UK) Ltd
(Unreported 20 ET/1500258/2011), a tribunal ruled that an employee was
fairly dismissed after he had posted negative comments about his employer and
its products, on his private Facebook page.
In
addition to the above, where an employee has posted derogatory comments about
other employees on his social media account, this may raise further issues in
respect of bullying and harassment and same can lead to internal problems in
the workplace, such as a reduction in productivity of the bullied or harassed
employee. It is important to remember that an employer is vicariously liable
for the acts of one employee to another in the course of their employment and
therefore appropriate disciplinary action must be taken where this occurs.
As
set out above, whether the post constitutes grounds for disciplinary action
will depend on the circumstances of the post, its nature and extent. The
seniority of the employee in question is likely to be a key factor as well,
given that any conduct that indicates bullying or harassment on the part of a
manager or supervisor through social media posts may point to or even cause
problems in the workplace. Also, any derogatory comments made by a senior
member of staff of the company, about the employer and its business, will more
likely be taken seriously, by the public.
What
an Employer may Consider before Exercising Disciplinary Measures Against
an Employee.
Upon
becoming aware of an employee’s offensive social media conduct, an employer may
consider any or all the following, in the determination of whether it should
exercise its disciplinary powers against the employee found wanting and the
form of discipline to impose.
1. Publicity –
this includes the nature of the social media platform used (i.e. private e-mail
versus public tweet), the number of Friends or followers who can view the
initial post, and whether the post has been reproduced or shared. The comments
following same will also be considered.
2. Connection to
employment –
that is, is a third party capable of drawing a connection between the
poster and the Employer? Does the employee hold themselves out to be
representative of the business?
3. Previous
similar allegations –
whether the employee has been engaged in, and disciplined for, similar
behaviour may be a deciding factor.
4. Intent
to offend/seriousness of the post – this refers to whether the
employee only meant the comment as a harmless joke or if they actually intended
to upset the recipient, which may have an impact on the decision. Is the post
of such a nature that can be believed?
Defences/Mitigating
factors that may be raised by an errant employee.
Upon
the exercise of disciplinary action against an errant employee, he may raise
any of the following, to mitigate the extent of punishment or get his
punishment revised/reversed.
1. Provocation –
an employee may raise the defence of provocation if the online outburst is the
result of a single, upsetting event. However, if the employee continues to make
harmful posts after the heat of the moment has passed, this defence is less
likely to work.
1.
Employee
remorse – whether the employee has
apologized for their behaviour and taken the offensive post down.
2.
Length of
service – Generally, an employee
with longer service will be more secure than a more junior employee.
3.
Intoxication – as most social media posts happen at home, employees might
claim that alcohol or other intoxicant, played a role and should be a
mitigating factor.
As
far as this writer knows, there is no known legislation on social media use,
neither is there any reported judicial authority on this issue in Nigeria,
despite the increasing concern of the legal and reputational risks employers
may face for their employees’ social media conduct. Because the National
Industrial Court of Nigeria tends to tilt in favour of the employee, it is
however advised, that employers establish a clear and comprehensive policy on
the potential consequences of inappropriate social media conduct, even while
off work. Such policy should cover instances of online bullying and harassment.
It will be prudent to include this in the employment contract and workplace
handbook of the company. Because many employees may not know the impact of what
a seemingly “innocent” post on social media, may have on their employer, it is
further advised that employees be adequately trained in this area, to avoid any
misunderstanding.
In
conclusion, despite the fact that there is no clear law on this subject in
Nigeria, where there has been an offensive social media conduct in the
workplace, an employer may rely on not just its policies, but may rely on
statutes and caselaw from other jurisdictions. This in line with Section 254
(C) (1) (f) and (h) of the Constitution of Nigeria (Third Alteration Act) 2010,
which enjoins the National Industrial Court of Nigeria, to have recourse to
international best practices, in the determination of issues before it.
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