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LEGAL REPORT/LABOUR AND EMPLOYMENT Facebook is the new water cooler B.C. ruling shows venting on online social media sites can lead to getting fired. BY ROBERT TODD been taking afternoon trips to Tim Hortons. But only recently has the workplace grumbling emerged online, with the dawn of social media sites like Facebook. A recent British Columbia Labour Relations Board ruling, how- ever, should make workers think twice before venting online about their bum- bling bosses. The case, Lougheed Imports Ltd. C (West Coast Mazda) v. United Food and Commercial Workers International Union involved a series of incendiary Facebook postings by a pair of employees at an auto- motive detailing and accessory shop in Pitt Meadows, B.C. One of the employees, identified only as JT, had worked at the shop for four years, and was a key orga- nizer in a campaign to establish a certified union at West Coast Mazda. The other, identified as AP, had worked at the shop for two years and was a union supporter. The Facebook postings, referenced by B.C. Labour Relations Board vice chair- woman and registrar Allison Matacheskie in her ruling, began Aug. 27, 2010, the day the employer received notification that its workers were applying for union certification. In the October 2010 ruling, Matacheskie said the postings contained "very offensive, insulting and disrespect- anadian workers have been gathering around water coolers to com- plain about supervisors for as long as they've ful comments about supervisors and managers." JT's posts began with one that read, "Sometimes ya have good smooth days, when nobodys [expletive] with your ability to earn a living….and sometimes accidents DO happen, its unfortunate, but that's why there called accidents right?" Another read, "If somebody mentally attacks you, and you stab him in the face 14 or 16 times . . . that constitutes self defence doesn't it????" He later announced his status as "stress relief anyone," and proceeded to post the "top five kills" from the television show Dexter, which follows the life of a seri- al killer. Additional posts included ref- erences to a manager as "Head Prick," insinuation of sexual activity between two managers, and suggestions that the shop sold inferior products. He also called his boss, "A COMPLETE JACK-ASS . . . not just Half-a Tard." In a posting on AP's Facebook page, he called the shop a "[expletive] joke," and urged people not to shop there as "they are [expletive] crooks and are out to hose you." He later deleted his Facebook account. Management conducted investiga- tive meetings regarding the posts with JT and AP on Oct. 6, and both were fired the following day. The union alleged the employer lacked proper cause for the fir- ings, and said the terminations were moti- vated by anti-union animus. Matacheskie disagreed, relying on the Ontario Superior Court's 2009 ruling in Leduc v. Roman to www.CANADIAN Lawyermag.com FEBRUA R Y 2011 39 determine that the complainants did not have an expectation of privacy. She said the Facebook postings were "akin to com- ments made on the shop floor." She also relied on a test laid out by the B.C. Labour Relations Board on how anti- union animus should be weighed, with a primary consideration being the man- ner in which the discipline was carried out. The employer allowed JT's Facebook conduct to continue for several weeks, but that "does not mitigate against a finding of proper cause," wrote Matacheskie. Ted Kovacs, of Hicks Morley Hamilton Stewart Storie LLP in Waterloo, Ont., says Lougheed appears to be the first Canadian case involving a firing based solely on behaviour on Facebook. While decided C ontinued on pa g e 41 DUShAN MILIC