Trivializing tragic events can be grounds for dismissal
Employees must consider possible social media consequences of their words and actions, Howard Levitt says.
The global protests in response to the killing of George Floyd originated with a video recording of the officers’ conduct. Although serving a social good in this case, it serves as a reminder to employees of the ubiquitousness of recording devices in the workplace — and beyond.
Ottawa resident Shania Lavalle lost her job at Boston Pizza after sharing a video on Snapchat, which re-enacted George Floyd’s final moments.
The video showed Lavalle’s sister Justine lying on the ground with her boyfriend’s hands and knees on her back.
Shania later deleted the post and posted an apology but not before it was widely shared and neighbours, co-workers, and customers of Boston Pizza identified her to her employer as the one posting the video.
One social media user said that he demanded action from the franchise and warned that they were watching and waiting for the employer’s response. The user said Boston Pizza responded to him stating that Shania had been terminated.
An even more interesting twist came when it was reported that Justine was an employee of the Canada Border Services Agency. The CBSA issued a statement last week stating that it had been made aware of a social media post and immediately investigated the situation, adding that “the individual no longer works at the CBSA.”
Generally, employers in Canada can terminate employees for any reason (except for reasons related to the human rights code) as long as they provide employees with adequate notice or severance. If there is cause for dismissal, no such notice or pay is required.
With a backdrop of discussions of systemic racism, COVID-19 and an increasingly virtual environment in which all our meetings are now recorded on internet platforms, employees must be increasingly vigilant about what they say, even if they assume they are in a breakout room or that the recording has ended.
In this context, the answer to the question as to whether Boston Pizza or the CBSA had cause to terminate these employees is a resounding yes.
While Shania’s video was posted from her personal account, presumably outside of working hours, the video placed her employer’s reputation on the line as customers identified her from the Boston Pizza location they frequented.
Others demanded action from the Boston Pizza franchise as the video was shared widely. Canadian courts have been clear that damage to an employer’s reputation, economic interests or brand can be cause for dismissal. Employees must consider the consequences to their employers of their social media postings.
For its part, the CBSA in its statement declared that it holds itself to “a high standard of professionalism and integrity.”
Workplace policies and an employer’s consistent conduct upholding such standards could be used in support of the CBSA’S decision to terminate its employee with cause.
As a national agency purporting to represent all Canadians, CBSA would be expected to have tight anti-discrimination policies, social media and workplace conduct policies binding their employees.
Such policies are a two-edged sword as an employer’s conduct contrary to its own policies can be used in legal actions by employees who are treated inconsistently with those policies. Too many employers take high-minded policies from the internet without considering whether they “walk the talk” or even intend to.
Pious statements as to equal treatment and corporate rectitude can come back to haunt employers when their employees sue, complaining that these policies are contracts and that they were not adhered to, leaving that employee at a disadvantage.
Shania’s posted apology acknowledged that her post was inconsiderate of these sensitive times but claimed that the video was not meant to represent what happened to George Floyd and that her sister and her boyfriend were just play fighting. That’s irrelevant as the video damaged her employers’ brand.
Generally, a thorough internal investigation into the employee’s actions, whereby the employee provides their version of events will assist in employers making the correct decision before they terminate employees for cause. It also prevents a more ingenious excuse being invented to explain their conduct after those employees speak to counsel.
As employees try to maintain connections during the pandemic through their social media accounts, they should pay heed to what they are posting before speaking, typing or “acting.”
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.