Williams HR Law LLP

Termination for Off-Duty Misconduct Part 2: Social Media

August 7, 2019

[vc_row][vc_column width=”1/4″][vc_single_image image=”3445″ img_size=”large”][/vc_column][vc_column width=”3/4″][vc_column_text]In last week’s blog, we discussed the general legal framework for dismissing employees for cause for off-duty misconduct and examined recent examples of these kinds of dismissals in the context of criminal and quasi-criminal conduct. This week, we will focus on examples of off-duty social media misconduct that meets the high legal standard for termination for just cause.

Over 60% of Canada’s population has grown up in the computer era. With computers and internet readily accessible, social media use is at an all-time high. This reality means that social media is the method by which employees are communicating, which creates risk for employers. Employees’ improper social media use can severely impact an employer’s reputation; create operational and business risks; and trigger legal obligations related to health and safety, human rights, and privacy.

Social media misconduct varies in severity and can come in many different forms, for example using social media to undermine the employer, divulge confidential employer information, or harass co-workers. Because the just cause analysis is contextual, there is no hard and fast rule about what behavior would justify dismissal for cause and what behavior would fall short. However, case law provides examples of the kind of off-duty social media misconduct that adjudicators have found to be sufficiently egregious to warrant dismissal for just cause.

Recent cases consider off-duty social media misconduct ranging from posting disrespectful content to threatening co-workers. In York University Staff Association v York University, an arbitrator upheld York University’s decision to dismiss a Laboratory Technologist for posting anti-Semitic content on his Facebook page. The Laboratory Technologist had a public Facebook account where he repeatedly associated himself with the University, and also made frequent posts glorifying Nazis and blaming Jewish people for current and historical atrocities. The arbitrator found that the anti-Semitic social media posts were in contravention of the University’s policies against hate-propaganda and racism, and harmed the University’s reputation. Therefore, the arbitrator found that dismissal for just cause was justified, despite the Technologist’s long service.

Making threats of violence over social media has also been found to justify dismissal for cause. In Tenaris Algoma Tubes Inc and USWA, Local 9548 (D), Re, an arbitrator found just cause for dismissal when an employee posted that physically aggressive, violent, and humiliating sex acts should be performed on a female colleague on Facebook. The employee, a crane operator, made the Facebook comments after he and the female colleague got into an argument about safety. Although the crane operator did not identify his colleague by name, he referred to her by a distinctive physical characteristic, which people were able to identify, including the colleague in question, who was very upset by the post. Overall, the arbitrator upheld the termination, finding that a woman reading the post would reasonably feel threatened, that the post was sexually harassing, and that, although the post was made off-duty, it was directed at poisoning the work environment for the female colleague. As such, the conduct was so egregious that dismissal for cause was justified in the interests of maintaining a workplace free from harassment.

Although the cases above deal with very serious social media conduct relating to discrimination and harassment, social media posts that show that an employee has engaged in foolhardy and reckless behavior has also been found to justify dismissal for cause. In IUEC, Local 50 v ThyssenKrupp Elevator (Canada) Ltd, an elevator mechanic was dismissed for cause when a YouTube video circulated of him with his genitals exposed and stapled to a 4 x 4 wooden plank. The mechanic engaged in the act on a dare during his lunch hour, which was technically outside of working hours. The employer (“ThyssenKrupp”) dismissed the mechanic for breaching its harassment policy and prejudicing its reputation. The Ontario Labour Relations Board (the “OLRB”) upheld the ThyssenKrupp’s decision, stating that grossly stupid behavior ought not be tolerated in the workplace. The OLRB stated that employers have a legitimate interest in preventing employees from engaging in stunts, pranks, or horseplay in the workplace and that the mechanic’s behavior significantly prejudiced the ThyssenKrupp’s reputation as a safety-conscious employer once the YouTube video went public.

Key Takeaways

The cases above provide assurance that, despite social media’s recent proliferation and the risks associated with employee social media use, employers are not helpless when their employees engage in inappropriate social media activity. The cases above suggest that a wide variety of social media misconduct can constitute just cause for dismissal and that employers may be permitted to dismiss employees for cause when their social media activity sufficiently damages the employer’s reputation, or constitutes harassing or discriminatory behavior against a person in the workplace or otherwise.

In order to best protect your interests and make strong decisions regarding employees’ off-duty social media conduct, Williams HR Law recommends five best practices for all employers. First, clarify acceptable behaviours and expectations, including for online activities, in workplace policies so that employees clearly understand what behavior is and is not appropriate. Second, determine and communicate behaviours that could create reputational risks so that employees understand the consequences of social media misconduct. Third, continually sensitize employees to acceptable conduct standards through workplace training. Fourth, properly investigate allegations of misconduct before implementing discipline so that you can make informed and well-reasoned decisions. Finally, consider mitigating factors when making discipline or termination decisions to ensure that you turn your mind to factors that a judge or an arbitrator will consider when determining if dismissal for just cause is appropriate, thereby increasing the likelihood that your decision will be upheld.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.