Friday, September 30, 2011

A Canadian Perspective on Social Media and Concerted Activity

The British Columbia Labour Relations Board recently issued a decision permitting the termination of two employees for Facebook comments during and immediately following a unionization drive, though the comments were substantially more inflammatory and threatening than those described above.  On October 22, 2010, in Lougheed Imports, Ltd. d/b/a West Coast Mazda v. United Food and Comm’l Workers Int’l Union, 2010 CanLII 62482 (B.C. L.R.B. 2010), the British Columbia Labour Relations Board upheld the termination of two employees for comments that they posted on Facebook about their employer.  During and immediately after the drive to establish a union, the two employees involved in the unionization effort posted offensive, and potentially threatening, comments on their Facebook pages.  In one post, one of the terminated employees wrote “If somebody mentally attacks you, and you stab him in the face 14 or 16 times… that constitutes self defence [sic], doesn’t it????” Lougheed Imports, 2010 CanLII 62482 at par. 17 (ellipses in original).  The employer began building a file on one of these employees, the most active union supporter in the shop, on the same day that the union applied for certification, and, despite the provocative nature of his posts, kept its concern secret from the employee until the date of his termination on October 7.  Despite largely agreeing with the union that the employer’s behavior was “puzzling” and “suspicious,” the Board sided with the employer, relying primarily on the egregious nature of the postings and the employer’s alleged uncertainty as to how to address misconduct on Facebook.

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