The recent arbitration decision in Board of Governors of Mount Royal University v Mount Royal Faculty Association [Mount Royal] illustrates the complexities of managing employee conduct involving off-duty social media use and political expression, particularly in the context of academic freedom.

Facts

The employee, a tenured professor at the employer, a university, was dismissed following allegations of harassment stemming from her social media activity. Known for her controversial political opinions, the employee engaged in a contentious with her colleagues through numerous posts she made on X (formerly known as Twitter). Several complaints were filed against her by her colleagues, alleging her online conduct constituted harassment. The employer engaged third-party lawyers to investigate, who concluded that the employee had harassed her colleagues through some of her tweets. As a result, the employer suspended the employee for two weeks.

Additional allegations from both the employee and her colleagues led to additional investigations. The employee filed complaints against 17 colleagues, of which six were substantiated, resulting in the employer issuing letters of warning. However, the investigations also found that the employee contributed to a toxic workplace, engaged in further harassment against one colleague, and made a frivolous, bad faith complaint against another colleague.

Citing these findings, the employer ultimately terminated the employee’s employment. The faculty association grieved the dismissal, asserting that the employer failed to conduct a fair investigation and that its actions violated the employee’s academic freedom.

Decision

The arbitrator upheld key findings of the investigations, concluding that the investigations conducted into the employee’s conduct were thorough and reached sound, reasonable conclusions.  

Importantly, the arbitrator noted that the investigators correctly considered the importance of academic freedom while assessing whether harassment occurred. While the exercise of academic freedom is an important consideration, especially in a post-secondary institution, the arbitrator found the investigations correctly concluded that academic freedom does not serve as a defense for the employee to express her views in a harassing manner. Citing the investigators’ reports with approval, the arbitrator agreed that the manner and tone of communication are significant factors in determining whether someone is principally challenging beliefs or being inherently demeaning or harassing.

However, the arbitrator found that while the employee’s social media activity included instances of harassment warranting discipline, the suspension and subsequent termination of employment imposed were disproportionate penalties. Of the wide number of complaints against the employee, only a small proportion of them constituted harassment. The context within which the employee’s tweets occurred was also pivotal – the investigations noted that the employee’s tweets occurred amidst broader disputes involving her colleagues, where their conduct also contravened employer policies. Despite this, her colleagues only received minor disciplinary actions. Ultimately, the arbitrator reduced the professor’s suspension to a letter of reprimand and awarded monetary damages for her dismissal in lieu of reinstatement, due to the breakdown in the employment relationship.

Takeaways for Employers

Mount Royal provides employers with several key insights about managing employee conduct, particularly in situations involving social media activity and political expression:

Social Media Misconduct: Social media use is increasingly scrutinized in workplace settings, particularly when it involves public or semi-public interactions among colleagues. As off-duty social media conduct can lead to discipline in the workplace, employers should ensure they have comprehensive policies governing such activity. These policies should establish clear expectations about acceptable conduct and provide guidance on how online interactions between employees may impact the workplace. In assessing whether harassment has occurred, a contextual approach should be taken – the specific circumstances in each case have to be carefully reviewed and analyzed. Additionally, when investigating off-duty conduct, the investigator must carefully balance respect for employees’ privacy with the need to gather relevant information, avoiding excessive or intrusive data collection.

Managing Political Expression in the Workplace: Mount Royal highlights that while freedom of expression is paramount, especially in academic settings, there are reasonable limits to the content or manner of expressing one’s opinion. While employees have the right to express their political views, these rights are not absolute, particularly when the expression becomes harassing in nature. As political views are becoming ever more polarizing and integral to employees’ identities, rampant political division is spreading amongst workforces. Recent geopolitical events have only accelerated this division, creating the potential for heated fallouts if employers fail to properly address these situations. To understand and learn more about managing political expression in the workplace, read our previous blog on the issue.

Conducting Thorough Investigations: Investigating allegations of off-duty misconduct, social media activity, and workplace-related misconduct can be complex. In such cases, it is crucial to engage an experienced investigator. In this instance, the employer engaged multiple legally trained, third-party investigators to not only determine the facts but also assess whether the substantiated conduct violated laws and workplace policies. Their thorough analyses, extensively cited in the arbitrator’s decision, contributed to the arbitrator’s findings that the employee’s actions indeed constituted harassment.

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

This information is not intended as legal advice.