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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.

In his reasons, the arbitrator emphasized the very public nature of the grievor's internet blog. The arbitrator found that, at best, the grievor had been careless in ignoring the fact that her "permissions" had been set to "public" access rather than "private." While the arbitrator did not state that a "private" website would have precluded discipline, particularly since any disclosure of confidential information would have been in violation of the employer's confidentiality policy, the public nature of the postings appears to have been of particular concern to the arbitrator.

This decision provides interesting insights for employers concerned with the activities of their employees on the internet. Internet blogging pages, as well as social networking websites such as "Facebook" or "MySpace," create potential for a very public dissemination of personal views about management, and of confidential information. A question that the decision raises is whether it is appropriate to distinguish between websites such as Facebook where access to one's web page is limited to personal contacts, and websites such as Blogger.com or MySpace, where one's webpage is accessible to the general public. When an employee is disciplined for making disparaging comments about management, it may be a relevant factor whether the comments were made to a small circle of friends, or to the public at large. Similarly, for communications via the internet, such a distinction may be relevant in determining the appropriate level of discipline for insubordinate conduct. As Chatham-Kent suggests, however, that same distinction should not necessarily be drawn for breach of a confidentiality policy, where such a policy is clearly drafted and promulgated, and prohibits the disclosure of any and all confidential information.

The lesson for employers, then, is that confidentiality policies should be broad enough to encompass any disclosure of confidential information, made to the public at large or otherwise. The speed with which information can be spread on the internet, and the potential for harm that this creates, also means that employers should be proactive in educating their employees about the proper limits on internet communication affecting the workplace.

Employers would be well advised to have effective workplace policies limiting the use of the internet for personal reasons during work hours, and educating employees about appropriate internet practices, both on and off duty.

Employers should consider taking the following steps:

• Promulgating clear policies against the dissemination of confidential information. Such policies should be broadly drafted and prohibit dissemination of any information to any unauthorized person.
• Implementing internet policies that clearly set out limitations on the use of social networking and personal websites while at work. In fact, some employers have blocked such sites from workplace computers.
• Implementing workplace policies on the limits of personal use of computers and the internet while at work.
• Implementing clear rules regarding insubordination, and education of employees about the extension of such policies to certain off duty conduct.

With foresight and planning, employers can better safeguard against harmful effects of misuse of the internet by employees.

[1].    [2007] O.L.A.A. No. 135 (D.R. Williamson).

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

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© Ogilvy Renault LLP 2007 - All Rights Reserved

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