Facebook Photos Prove Employee Lied to EmployerWritten on behalf of Peter McSherry
Social media has become a ubiquitous part of everyday life and continues to rapidly evolve. New technologies and new uses for those technologies seem to emerge daily. It is not surprising that social media and the technology behind has been providing the courts with novel situations and legal questions to grapple with.
Privacy is often at the forefront of concern around social media. There is a growing awareness of the huge reach social media has and the lack of privacy people should expect when posting material online. This was a lesson learned the hard way by the employee in Chatfield v. Deputy Head (Correctional Service Canada).
The employee was a unionized corrections officer in Nova Scotia, working for Correctional Service of Canada (the employer).. . A series of personal events from 2009 to 2011 caused the employee to incur a sick leave deficit of 25 days, leaving her unable to take sick time without a written note from a doctor. Beginning in the fall of 2011 she was absent for work for several months after witnessing an extremely violent fight between inmates and developing what her psychiatrist described as “unmanaged stress arising from a critical incident in the workplace.”
The employee returned to work on December 11, 2011. Shortly thereafter she called the employer to inform them that her father had passed away. She requested and was granted bereavement leave to attend his funeral in Ontario.
When Social Media Calls Your Bluff
While the employee was away, rumors began to circulate around the workplace that she was actually in Mexico on vacation, and not, in fact, at her father’s funeral. Some of her co-workers slipped photos they had printed from the employee’s Facebook account under the office doors of managers at the workplace. One of the messages, dated December 16, was captioned, “And the days off begin!!” Another photo was posted on December 26, this time depicting the employee on a beach, with the caption “Beautiful Mommy in Mexico!” An entire photo album was posted on December 30 titled “Mexico 2011.”
Due to alleged personal family issues, the employee did not return to work until January 23, 2012. On her first day back she was asked to attend a meeting with a number of managers and was advised to bring union representation. At the meeting, management offered condolences for her father’s passing, but also mentioned there was evidence she had gone to Mexico, and not to a funeral in Ontario, something the employee outright denied.
After an investigation, the employer determined the employee had lied about her father’s death and funeral. The employee was terminated on March 22, 2012.
The union grieved the termination, arguing that the employee had been suffering from alcoholism and was therefore unable to understand the serious implications of lying to her employer. The grievance was unsuccessful. , The adjudicator upheld the termination, finding, “the grievor in the present case clearly broke (a) bond of trust. She engaged in a calculated effort to deceive the employer by fabricating a lie about her own father’s death and then, when confronted about it, compounding on that lie with additional fabrications about her father’s identity, who made the Facebook entries, the death certificate, and so on, in order to continue deceiving the employer. This was not a mere error or slip but an organized effort on her part to fool the employer in order to receive paid bereavement leave, which was the one form of leave that was still available to her, having exhausted her sick leave credits and been denied vacation leave due to the quotas being applied during the holidays. As mentioned earlier, this was a flagrant breach of the codes and standards that the employer had set for its employees.”
Lying to an employer can carry serious consequences. In a non-unionized setting it can be grounds for just-cause dismissal, while in a unionized setting such as the one discussed in this blog, a termination due to a serious lie will usually lead to the termination being upheld.
The offices of Peter A. McSherry specialize in representing individuals in matters relating to their employment. Call our office at 519-821-5465 if you have been terminated and feel you may have a claim for wrongful dismissal.