Cumulative Cause.2.

• Author: Bowal, Peter

Introduction

The constitutional freedom of expression that Canadians enjoy does not extend to private workplaces. What are employee limits on speaking out against private employers?

The last Employment Law column narrated the story of Ms. Kim, a media specialist in the position of Senior Communications Manager employed by the International Triathlon Union ("ITU"). Kim was the ITU's voice, responsible for all its messaging, including all website content. Communication was at the core of Kim's employment. She was well aware of the importance and accuracy of the written word, not to mention objectivity and discretion. Nevertheless, she posted numerous derogatory and unprofessional comments about her work, employer and supervisor on social media.

Some of her Facebook and Twitter posts could be interpreted as coming from someone who was fed up with her job or felt harassed in it. She mentioned "propaganda" as a product of her organization and implied ITU had "no values or morals, we just go wherever the money is." Kim was warned many times by ITU that her style and tone of communication was not acceptable. Her supervisor spoke to Kim "many times, to the point of exhaustion."

The warnings went unheeded. In her blog, Kim published a nasty, rambling tirade comparing her supervisor to her abusive mother. International contacts working with ITU complained about her communications and petulant behaviour.

At the end of the last column, the question was raised whether these public unprofessional, far-reaching communications made by ITU's Senior Communications Manager had irreparably harmed the trust inherent in the employment relationship. Were Kim's actions incompatible with continued employment with ITU? Did they comprise sufficient legal grounds for ITU to fire Kim [http://www.lawnow.org/cumulative-cause-1/]?

Judicial Decision

The Senior Communications Manager challenged her firing by ITU. In Kim v. International Triathlon Union, 2014 BCSC 2151 [http://canlii.ca/t/gfbm4], the trial judge used context to determine whether Kim's misconduct constituted sufficient cause. The severity of an employee's misconduct must be proportional to the firing (which is considered the capital punishment of employment).

Only in exceptional circumstances will a single act of misconduct justify summary dismissal. The employee misconduct must be serious and incompatible with the employee's duties and prejudicial to the employer, or irreparably harm the relationship between...