Everybody knows social media misuse can get you fired. However, a recent court case, involving a Toronto Pan Am Games employee, shows the burden of proof is extremely high for employers.
Last November, Paula Kim, who is currently the Games’ senior communications manager, won a wrongful dismissal case against her former employer — the International Triathlon Union — despite making some harsh blog and social media posts criticizing her boss and organization.
Kim’s former boss, Loreen Barnett, was the object of her scorn in a personal blog post that was used as evidence by ITU in the B.C. Supreme Court case Kim v. International Triathlon Union. That post, since deleted, was written after Kim was denied some paid vacation she said Barnett had verbally agreed to.
Kim compared the experience to being physically abused by her mother as a child:
“. . . today for the first time in a long time i felt like that kid all over again; beaten, discouraged, alone and scared, after the most disappointing conversation you could possibly have with your boss. the same horrible, sickly feeling of someone above you kicking you down with lies and senseless put downs and insults and zero reality all flooded back in a horrible, despicable wave of nostalgia. and for the first time in many years i actually sobbed (by myself in the bathroom of course) which i almost never do. and of course she’s right, how can i possibly be right when i’m not the authority figure! just like when i was a kid, i don’t feel like I’ve done anything wrong but it doesn’t matter because this person that i stupidly thought cared doesn’t give a shit and just wants to beat my head in.”
ITU also referenced numerous Twitter posts on Kim’s personal account @PK247 that it felt were inappropriate. Kim claimed most of the tweets were made in jest and she was never told any of them were inappropriate until after she was let go.
The ITU responded that the posts “irreparably harmed the trust inherent in the employment relationship through her unprofessional and insubordinate communications that were far-reaching and accessible to those throughout the triathlon sport community.”
After 22 months on the job, Kim was fired on Nov. 20, 2012 in a manner her lawsuit claimed happened “suddenly and without advance warning” and “without cause.”
Justice B.I. Cohen agreed, stating ITU did not “establish cumulative cause for the plaintiff’s dismissal” and that the employer failed to “give the plaintiff an ‘express and clear’ warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her.”
Kim was awarded five months termination pay and compensation for lost medical benefits.
So what is the threshold for firing an employee for social media blunders?
Employers often make the mistake of not addressing bad behaviour immediately, says labour lawyer Hendrik Nieuwland at Toronto-based Shields O’Donnell MacKillop LLP.
“Sitting on misconduct makes lawyers’ jobs really hard,” he says, noting that in the Kim case ITU waited six weeks before firing her after she wrote the blog post.
“We have to explain to a judge why, if we say it’s so serious, did the employer not do anything for a period of time.”
Nieuwland says the biggest test for the employer to prove is did the social media abuse present a “substantial and warranted concern” about the potential harm to your reputation. That includes any of the following:
- Criminal Code offence;
- human rights violation;
- discrimination or harassment.
In 2013, Toronto firefighter Matt Bowman was axed after posting misogynistic and racist tweets, which violated his company’s anti-discrimination policy.
“If you want to discipline an employee for engaging in social media misconduct, you have to show that there’s a real and material connection to the workplace in what they do,” says Nieuwland, adding that was easy with Bowman, since he identified himself as a Toronto firefighter in one of his tweets.
Also in 2013, a Mr. Lube employee, who solicited drugs on Twitter while he was at work, was promptly fired as he committed a criminal offence.
Just cause was harder to prove in the Kim case because her actions were not indictable offences and fell into a grey area of “lesser misconduct,” says Nieuwland.
It clearly hasn’t hampered Kim’s ability to find work, as she landed her current Pan Am job just eight months after being fired. Last year, Kim made Ontario’s Sunshine List with a salary of $113,000 — more than $30,000 above what she was earning at ITU.
Whether her new boss was aware of the firing or lawsuit is not known. A request for comment from Toronto Pan Am officials went unanswered.
However, ITU Director General Antonio Fernandez Arimany told FindLaw.ca in an e-mail his organization “did not contact anyone at the Pan Am Games before they hired Paula.”
On providing a reference for an employee you fired: “There’s no restriction on an employer to not say something to a prospective employer that’s true about someone’s performance,” says Nieuwland.
“Most employers are circumspect about what they say about employees who left on not-so-good terms. Usually in those circumstances they just refuse to give a reference.”