Indiscriminate Blogging – What US Based Employers Should Consider
Canadian Workplace Letter
Email contactCategory: Legal Article
Created: Oct 9 2007 - 19:03
Updated: Nov 28 2007 - 12:13
Ogilvy Renault's Employment and Labour Law practice is one of Canada's largest management-side practices. We represent a significant number of private and public sector employers and provide a wide variety of advocacy services and strategic advice. This newsletter deals with issues of importance in Canadian labour and workplace law.
In a recent Ontario arbitration award, Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance)1, the termination of a unionized retirement home employee was upheld by an arbitrator for acts of insubordination and breach of confidentiality. The grievor, an eight year employee of a retirement home, had set up an internet blog that could be read by any member of the public with internet access. On her blog, the grievor made disparaging statements about her employer. The grievor also made statements criticizing and expressing her dislike for residents of the home. As noted by Arbitrator Williamson, the blog was "blunt and laced with coarse language." On other parts of the blog the grievor had posted pictures of herself with residents of the retirement home.
Management became aware of the grievor's blog and the grievor was terminated for breach of confidentiality and insubordination, and the matter was grieved. At arbitration, the union argued that the grievor was not aware that she had made the blog accessible to the public, and that she had intended the blog to be accessible only to her close family and friends. Management argued that the grievor's blog constituted a serious breach of patient confidentiality and insubordination, and provided just cause for termination.
The arbitrator upheld the termination of the grievor, finding that the employer's rules regarding the confidentiality of resident information were reasonable and met the necessary tests for unilaterally imposed rules. The posting of residents' pictures was a clear violation of the confidentiality policy and worthy of discipline. The grievor's contemptuous comments about management were tantamount to insubordination and also provided just cause for discipline. While certain mitigating factors existed, such as the grievor's relatively long service and immediate apology, termination was nevertheless found to be justified, and the grievance was dismissed.
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