HR Professional - April/May 2008 - (Page 16)

L E GA L BY SUSAN E. SORENSEN EMPLOYEE BLOGGING A ‘‘ recent arbitration award has confirmed that employees can be dismissed for just cause for workrelated blogging activities. The decision addresses the limits of free speech by employees who “blab” publicly about their employer’s business. In this case, the grievor was a personal care worker in a residential home. She had eight years service in her job and was popular among staff. Following her transfer to a new facility, she developed a blog site to stay in touch with colleagues and discuss work-related issues. In the blog, the grievor posted several entries directly related to her job, including references to patients, in some cases identiﬁed by their ﬁrst or last name and/or initials, and descriptive information about their medical conditions. The entries were also riddled with profanities and negative commentary about some management staff. The decision addresses the limits of free speech by employees who ‘blab’ publicly about their employer’s business. Upon discovery of the blog, the employer concluded that it had just cause to terminate on two grounds: breach of conﬁdentiality (the grievor had signed two conﬁdentiality agreements pertaining to patients and patient information) and insubordination. The employee, through her union, argued that there wasn’t just cause to terminate because she was not computer-literate and had failed to appreciate that her blog was publicly accessible. The employee also argued that the content of the entries was no different than the kinds of comments and discussions made between herself and her colleagues in the cafeteria. There was no evidence that the blog entries had been made on work time and, immediately following her termination, the employee removed the site. To refute the grievor’s claim that she had not realized her blog was public, the employer retained a web expert to demonstrate the steps the grievor would have taken when creating the site and proved that she had been given the option to make the site public and had chosen not to limit its accessibility at several points in the process. Ultimately, the arbitrator upheld the termination. The arbitrator found the tone and manner of the blog entries to be both insubordinate and inappropriate. In his view, this went beyond lunchroom banter, and he held that the comments could not be divorced from the public stage on which they were uttered. The arbitrator also concluded that the nature of the comments, their hostility and the language used to express them, demonstrated a disregard for a patient’s need for care and that this was conduct unbeﬁtting a personal caregiver. ’’ Implications for employers The case emphasizes the evolving deﬁnition of off-duty conduct in the Internet age. While there was no evidence that the blog entries were made on work time, the nature of the disclosures, the fact that they were publicly accessible, and the work-related commentary was sufﬁcient to make this a disciplinable workplace issue. The case may also expand the deﬁnition of insubordination to include insolent and disrespectful conduct, even if such conduct is not directly aimed at management or uttered verbally. Finally, the case highlights the need for employers to maintain comprehensive workplace technology policies, covering the use of conﬁdential information and personal web and blog sites. Susan Sorensen, LLB (ssorensen@blgcanada.com) is a partner at Borden Ladner Gervais LLP. HR P R OF E S S I ON A L 16 A p r i l / M a y 2 0 0 8

Table of Contents Feed for the Digital Edition of HR Professional - April/May 2008

HR Professional - April/May 2008 Contents Editor's Letter Contributors Leadership Matters By the Numbers On the Web Careers World Watch Accounting Health & Safety Foreign Professionals Management Office Life Legal Compensation Web 2.0 @ Work Talent Management Systems On Message Strategy HR 101 Interview With Colin Mackay Off the Shelf The Last Word

HR Professional - April/May 2008

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