INTRODUCTION
I will be commenting on a very interesting case that is, at its core, a case about free speech, but it also engages disciplining employees for opinions they express outside of work on social media. The case is Kim v International Triathlon Union, 2014 BCSC 2151, where the British Columbia Supreme Court found that an employee’s termination for questionable posts on social media was unjust and breached her employment contract.
BACKGROUND FACTS
- Paula Kim was employed by the International Triathlon Union in the position of Senior Manager of Communications. At the time of her termination, she had worked two terms at ITU, between late 2006 and early 2009, and a second term from late 2010 until her termination.
- On November 20, 2012, ITU terminated her employment, without cause. On termination, ITU provided Ms. Kim with two weeks of her base salary in lieu of notice under the BC Employment Standards Act, plus an offer of a salary continuation until December 31, 2012, if she signed a release. She did not have a written employment agreement with ITU.
- Kim brought an action against ITU, alleging that she was wrongfully dismissed. ITU initially took the position that Ms. Kim had not been wrongfully dismissed and was therefore not entitled to damages, but then subsequently revised that position and said that it had cause to terminate Ms. Kim at the time she was terminated, on the basis of the inappropriate nature of her communications, the effects of which were viewed as more severe given her professional and managerial role and position with ITU as the voice of ITU within the triathlon community. So, this is not a case of after acquired cause.
- ITU is the international governing body for the multi-sport disciplines in triathlon. It sets the schedule for international triathlons, the rules for competition and the amount of prize money and operates the certification program for officials.
- Kim said that ITU had no social media policy, and after moving from Toronto to Vancouver to work for ITU, Ms. Kim began operating a personal blog, and Twitter and Facebook accounts to keep her friends and family in Toronto in the loop about her life in Vancouver. One of the Twitter accounts was initially associated with ITU, though ITU ultimately asked Ms. Kim to remove the ITU handle from this Twitter account after she made some posts that ITU considered inappropriate. She said that other employees at ITU knew about her blog. She said the general atmosphere at ITU was informal and had a “family” feel.
- In August 2012, Ms. Kim made a number of Twitter posts about various athletes. She said she felt she was being neutral, but the posts attracted the attention of the Chief Executive of the British Triathlon who wrote a letter to Ms. Kim’s supervisor expressing her disappointment with the nature of the Tweets. Ms. Kim said she first saw a copy of this letter at her Examination for Discovery, after she was terminated.
- ITU also took issue with the following posts Ms. Kim made in late October 2012:
- Facebook: “2012 ITU season… DONE. now leave me alone until 2013!!”
- Tweet: “surprisingly fun congress after-party last night. probly [sic] only time I’ll see so many Eboard members hungover & lamenting those tequila shots”
- Tweet: “I wonder if other IF congresses have as much propaganda as ours…”; and
- Tweet: “hey ITU, remember this next time I fly off the deep end… ‘@Relationship 102: If I didn’t care, I wouldn’t get mad.”
- Kim said these posts were made in a facetious joking manner and she said that no one indicated to her that they were inappropriate.
- In October 2012, Ms. Kim wrote a blog post titled “taking shit”, in which she vented and expressed her feelings about a disagreement she had with her supervisor about her vacation pay, which had triggered feelings of interactions she had had with her abusive mother when she was a child. She never mentioned her supervisor by name, but it could clearly be inferred from the blog post that she was talking about her supervisor. One of the statements she wrote, in reference to her supervisor, was, “… 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.”
- During her termination meeting on November 20, 2012, Ms. Kim said that she was told she was being terminated because her communication style was not in line with ITU. She said that she had never been told that before in those words, but rather that she was opinionated. Her supervisor’s evidence was that Ms. Kim was never reprimanded for the posts as such, but that she had many conversations with Ms. Kim and expressed to her that her communication style was not in line with ITU’s. Ms. Kim said that the sudden termination shocked her, particularly as she had never been formally reprimanded about her communication style.
COURT’S DECISION
In overturning the termination and awarding damages for wrongful dismissal, the Court focused on the long-established principle of “cumulative cause”, whereby employers may discharge employees for ongoing bad behavior if they first provide formal “express and clear” warnings to the employee, stating that such behavior is unacceptable, and expressing that the employee could ultimately lose their job.
The principle of “cumulative cause” is generally relied on where no single act of misconduct by the employee is sufficient to establish just cause for termination. Rather, there is a series of events that, collectively, support a dismissal for cause. The Court ultimately held that the social media posts did not amount to an accumulation of misconduct and there was accordingly no just cause for the termination, despite the fact that social media communication was an integral part of the employee’s job in this case. However, even if the Court found there was cause, it would have still found that Ms. Kim had been wrongfully terminated because ITU failed to warn Ms. Kim, whether orally or in writing, that the social media posts were inappropriate and unacceptable and that if she did not cease and desist from such performance and change her ways, her continued employment was in jeopardy. Instead, Ms. Kim’s supervisor simply told her that her “communication style” was not in line with ITUs.
Ms. Kim was ultimately awarded damages for wrongful dismissal on the basis of a 5 month notice period, based on the second period of her employment with ITU (which was approximately 22 months, from approx. January 2011 to her termination in November 2012).
BRIEF CASE COMMENT
I do think this case was correctly decided. In my view, had ITU expressly and clearly warned Ms. Kim that her conduct was unacceptable and would ultimately result in termination if she did not improve, even if that warning was given to her verbally, the result would have likely been different.
TAKEAWAYS
- It is beneficial for all employers to have a clearly written social media/internet use policy in place. The policy can set out what an employee can and cannot do on social media, it can also define what the employer views as “unprofessional conduct”, and can specify the consequences for violating the policy, up to and including termination.
- Although there are instances where a warning is not required prior to terminating an employee with cause, employers should generally strive to expressly and clearly warn an employee that their employment is in jeopardy due to their conduct and give the employee a reasonable opportunity to improve before terminating.
- Finally, this case is also a good reminder to employees to be mindful of what they post on social media about their employers, even if such posts are made outside of work hours and are not related to an integral part of the employee’s job. An employee is ultimately entitled to express a fair opinion about their employer, even if that opinion is not favorable to the employer, but this could ultimately cost them their job.
