Hired to promote Nunavut as an Arctic Nirvana, Penny Cholmondeley decided when she came across piles of abandoned machinery and rusted cans scattered on the snowy tundra outside the city of Iqaluit that pictures of the debris would make for a captivating posting on her personal blog. As well as photos of garbage, Cholmondeley also posted a poor review of a local restaurant and griped about the high prices for groceries. However, when Cholmondeley’s boss at the Nunavut Tourism Agency learned of Cholmondeley’s blog, Cholmondeley was fired.
Cholmondeley’s story made headlines across Canada. Soon, it will become a reality for more employees. In fact, I currently have one such case, in which a school janitor was discharged for posting comments on his personal blog that his employer believed “inaccurately” portrayed the school.
With the proliferation of blogs, defined as “online journals,” what used to be innocuous conversations at the water cooler are now being posted online for all to see.
For both employees and employers, blogging creates an entirely new panoply of workplace concerns.
For one, even though most blogs are created and maintained outside of working hours, employers do have the legal right to dismiss for off-duty conduct. As a general rule, discipline is properly administered when off-duty behaviour brings your employer’s reputation into disrepute or where your behaviour leaves co-workers unwilling to work with you. In a previous column, I discussed the case of an instructor teaching business and ethics at the University of Western Ontario who was fired when the university discovered he was engaged in an insurance fraud scheme. There is no good reason why the principles would not apply similarly to employees generating negative publicity via blogs.
Blog postings that can be considered harassing or discriminatory can also undermine the essential conditions of employment and justify an employer’s decision to dismiss the employee. In another previous column, I reviewed the case of two employees who were fired after distributing a vulgar e-mail at work detailing the sexual gymnastics of an overweight female co-worker and then lying to their employer during the ensuing investigation.
Usually, imposing workplace discipline requires that employers first be able to prove the misconduct occurred. The relative ease with which blog entries are created, disseminated and maintained means the evidence is unlikely to ever disappear. So, postings of jokes, pictures or stories can be traced back to their originators.
I’m told blogs are a means of personal “expression.” However, when employees use their personal blogs to lambaste the company that fired them, or the boss they alleged harassed them, defamation laws can apply.
Finally, employers are weary of the serious confidentiality and privacy risks that potentially arise from employees’ blogs. As a result, some employers have implemented specialized policies prohibiting blogging at work. IBM, for example, is one company that recently implemented a detailed blogging policy. Where such a policy is distributed in the workplace and then contravened, the employee jeopardizes his or her position.
Daniel A. Lublin is a Toronto employment lawyer. He can be reached at dan@toronto-employmentlawyer.comor you can visit him on the web at www.toronto-employmentlawyer.com.
