Syndicat des travailleuses et travailleurs de l’Institut universitaire en santé mentale de Québec (FSSS-CSN) v. Institut universitaire en santé mentale de Québec, AZ-50900060 (T.A.), September 30, 2012 decision

After having received a medical certificate recommending that the complainant be granted long-term leave from the workplace due to a depression, the employer consulted the complainant’s Facebook page. As the complainant had linked her depression with the end of a relationship, the employer’s suspicions were raised upon learning through the complainant’s Facebook page that she had established a new relationship and appeared to be exchanging romantic messages with her new partner. Her Facebook entries also appeared to indicate she was dining out at restaurants with friends, including her new friend.

The employer therefore summoned the complainant to be examined by the company physician. During the appointment, the physician made no allusion to the information appearing on the Facebook page, but asked her whether she was in a relationship, or whether she had seen friends or gone to the restaurant recently, to which the employee replied in the negative.

Following this examination, rather than interview the complainant to obtain her version of the facts, the employer proceeded with dismissal. The employer principally relied upon the contradictions between the responses of the complainant and the content of her Facebook page.

The arbitrator quashed the dismissal of the complainant, ruling that the questions put to her by the physician were too general to support the conclusion that the complainant’s statements were misrepresentations. The arbitrator also criticized the physician for not having specifically referred to the Facebook page of the complainant, merely satisfying himself with general responses to general questions.

The arbitrator concluded that the responses of the complainant to the company physician were much closer to reality than any information published on the Facebook page. Thus, it was insufficient to rely upon the Facebook information, which should have been double-checked prior to commencing any disciplinary measures.