Mon 3rd February 2020 by Lee Satveit
Joe, an employee at ABC Corp., is dismissed from his job. He goes home, and before he has had a chance to consult with a lawyer or consider his legal position his emotions get the better of him, he jumps on Facebook or Twitter, and he publicly posts
“ABC Corp. is full of liars and bullies, and they treat their customers like garbage!”
Hopefully, you have already guessed that Joe has not acted in an ideal manner if his goal is to maintain the best financial position for himself going forward. Joe lost his cool after his dismissal and he posted negative comments about his former employer on social media. This is not an advisable course of action for anyone. Depending on many factors, Joe may have had a claim for a substantial amount of severance. And, Joe may still have a great claim for such severance. However, by saying bad things about his former employer in a public forum, Joe has likely defamed his former employer. If Joe has a great case for severance based on his dismissal, a lawyer might be able to help him recover a large settlement from ABC Corp. However, if the employer becomes aware of Joe’s posts on social media, this may affect Joe’s bargaining position by giving his former employer a potential counterclaim for defamation. ABC Corp. may still owe Joe a substantial amount, but the total amount possible to be collected may now be reduced to a small or large extent because of Joe’s emotional outburst on social media. Or, in rare cases, the employer’s counterclaim could even be worth more than Joe’s wrongful dismissal claim. Joe has weakened his position. He should immediately delete the post, if he can, in order to minimize the chance that his former employer sees the post, and also to minimize the potential damage that ABC Corp. can claim the post did to their reputation.
Justice Lee of the Alberta Court of Queen’s bench stated the following regarding liability for defamation in Gouin v. White:
The tort of defamation is one of strict liability. To obtain judgment and an award of damages, the plaintiff in a defamation action is required to prove three things (1) that the impugned words were defamatory; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.
Generally, it is defamatory to suggest that someone is corrupt, dishonest, has acted dishonourably, or to insinuates that a person is a criminal or participated in a criminal act. The standard is whether an ordinary person would consider that the words spoken or published would negatively affect the reputation of the person or corporation spoken about. In the case above, Joe’s words are probably defamatory. He also clearly wrote his statements about ABC Corp., and by posting his comments to social media he has communicated those comments not just to one or two other people, but potentially to billions. Thus, Joe may have defamed his former employer. If his employer finds out, they could sue Joe. Conversely, if Joe gets a lawyer to help him obtain an appropriate amount of severance from the employer, the employer may be able to raise the defamation issue as a potential counterclaim, thereby weakening the bargaining position for Joe and his lawyer. As well, if any prospective new employers see Joe’s post, they may prefer not to hire Joe, or even to interview him, as his negative post may paint Joe in just as bad a light as Joe painted ABC Corp. Life for Joe would have been easier if Joe had simply remembered that silence is golden.
If you have been dismissed, or are having issues at your workplace, we recommend you consider reviewing all of your social media accounts and other online places (e.g., LinkedIn, Facebook, Whatsapp, Twitter, etc.). For each online presence, assess whether anyone at your workplace has access or could see your content. Set your privacy settings to the maximum. As well, you should consider whether you need to “unfriend” or block any colleagues or former colleagues (e.g., people you do not trust to a high degree). And, you should consider whether you already may have content online that your employer might find objectionable or defamatory. If it exists, delete it. Make your past posts private or hidden, if possible, or delete them if you can. You may even wish to delete your entire account. And, even before deleting an account, you may wish to change your name on the account to something different. A post on Facebook to the wall of a public account can potentially be found using an online search engine (i.e., may show up on a google search), and Google and Facebook may not make your changes immediately. So, to better protect yourself, you should probably take all steps possible to protect yourself, and change your profile name to something else even if you are about to delete the profile entirely. Finally, you should also consider whether any evidence exists online that you might use to your own benefit in your case. If so, immediately print it (e.g., print screen) or take a screenshot and save it to preserve the evidence.
If you have been dismissed, we recommend you schedule a consultation with us to assess the value of any potential claim. If you have been dismissed, but have also defamed your employer to third parties, there still could be substantial value left to your claim, and the value of any counterclaim the employer may have, if at all, should also be assessed. Please consult with a lawyer to receive advice tailored to your specific situation.