Is Cyber-Sacking the Way of the Future?

By Pushor Mitchell LLP
Categories: Blog, Employment Law

The front page in Kelowna’s Saturday Okanagan newspaper blared “Cybersacked” this past weekend. The accompanying story told of a spa employee who found out she was fired by reading a message sent by her employer to her Facebook inbox.

It must have been a slow news day for this to qualify as front page news but, nonetheless, the employer’s use of Facebook to deliver the notice of termination may signify something about the times in which we live.

The employee was offended by receiving such news electronically, commenting that “Firing an employee on Facebook is not a professional way to do it”. Chances are that if her employer was a considered a Facebook “friend”, it isn’t any longer.

It seems the employee had been hired only a few weeks earlier and the hiring had also been done via Facebook. In the past week, the employee missed a work-related meeting (without seeking approval in advance for her absence) which absence seems to have been the reason for the termination.

The employer indicated it had twice tried, unsuccessfully, to contact the employee by telephone. The employer wanted to get the firing over with and so resorted to the surefire electronic method.

This surely isn’t the first time an employee has received bad news electronically and certainly won’t be the last. It’s a reality that more and more communications are conducted by way of electronic message and so it’s probably unrealistic to think that matters of employment would be exempt.

Electronic text messages are, after all, just the modern equivalent of a letter. Employers have been delivering bad news to employees by letter for at least as long as we have had a postal system so, really, why is an electronic message any different?

And who ever said that the employment equivalent of a “Dear John” letter has to be carried out in a warm and fuzzy manner? Does it make the bad news any easier to take because it was delivered personally by a sympathetic human resources professional (trained to add just the right touch of empathy)?

Well, in fact the common law of employment says that the manner in which the termination is carried out does matter. Just over ten years ago the Supreme Court of Canada invented, in its pivotal Wallace decision, what are now known as “bad faith” damages.

In that decision the Court stated that the manner in which the termination is carried out can, depending upon the impact on the individual, be the basis for an additional award of damages. The employer’s conduct, however, must be egregious before a court will award such damages.

Run-of-the-mill poor treatment – which is often the product of the employer’s lack of knowledge or sophistication in such matters – just won’t satisfy a court that damages are required. In fact, in a recent decision the Supreme Court of Canada revisited Wallace and gave it a facelift, tightening up the wrinkles so that only extremely egregious conduct will make the grade.

Would the delivery of a notice of termination by way of electronic message meet the Wallace requirements for an award of bad faith damages? On its own, surely not (especially when the employer had attempted to make direct contact).

Just because it wouldn’t attract an award of damages, however, doesn’t mean that the “cyber sack” (as it was called by the newspaper) is the way to go. 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.

Business owners and human resources people shouldn’t fall easily into the trap of allowing the information superhighway (I promised myself I would work that phrase into this article) to be their avenue for delivery. When in doubt, employers should test their plans according to the golden rule – is this the way I would want to be treated if I were in the employee’s shoes?