May 16, 2017
In the years that have passed, the use of social media has proliferated exponentially. Today, virtually every person on the street carries their email, social media and even a camera with them, all conveniently packed into the same device: the smartphone.
The workplace pitfalls associated with the proliferation of the smartphone are many, and exist for both employers and employees. For example, since the time of the Cybersacking, there have been several instances where an employee has provided cause for their dismissal through social media posts.
Although the smartphone has certainly changed the way people interact, it remains perilous for an employer to use social media for the termination of its employees.
Around the time of the Cybersacking, Canadian courts were applying the “Wallace bump” to increase the damages owed to employees dismissed in bad faith by an extension of their notice period. For example, if an employee was mistreated in dismissal, they might have two months tacked onto their notice period as a remedy. However, in 2009, the Supreme Court of Canada did away with the Wallace bump in favour of a return to the traditional concept of ‘aggravated damages’.
Like the Wallace bump, aggravated damages are available where an employer acts in a way that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”. Unlike the Wallace bump, aggravated damages are intended to be compensatory, meaning that the employee must suffer a corresponding loss, such as mental anguish or the loss to one’s reputation. Aggravated damages are not available for the ordinary mental distress that accompanies getting fired.
As one example of the application of the revised law, $35,000 in aggravated damages was awarded in the context of an unfair and insensitive investigation that caused an employee to suffer panic attacks and other symptoms. While the employee in this example proved this loss through a medical opinion characterising her condition as “adjustment disorder”, medical evidence is not necessary to found an employee’s claim for aggravated damages.
Returning to Cybersacking, although there haven’t been any published judgements of a Canadian court for a dismissal using Facebook, the Alberta Provincial Court awarded aggravated damages for the termination of an employee by text message. In that case, the employer had become frustrated with having to cover shifts during an employee’s holiday time. The employer refused to return the employee’s calls and would only send the employee text messages. After the employee heard a rumour that she had been fired, the employer confirmed this to her – via text.
This award of aggravated damages in this case could have been avoided had the employer dealt with the termination in a civil and direct manner. Even a phone call might have accomplished this.
Dealing with people in a civil, respectful manner at all times – especially when the delivery of bad news is required – is, even in this modern age, still the proper approach. Employees will always be unhappy to be fired, but if an employer is kind throughout the process an employee will have little basis to pursue a claim for further damages.
Adapted from Is Cyber-Sacking the Way of the Future? by Robert Smithson of Smithson Employment Law. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. Revisions and additional information provided by Cameron R. Wardell, an employment lawyer with Mathews Dinsdale & Clark LLP (March 2017). The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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