A recent time ago in a jurisdiction not so far away, actress Gina Carano, known for her role in the popular show, The Mandalorian, found herself embroiled in a high-profile dispute with Disney and LucasFilm following her dismissal from the show as a result of her controversial social media posts. Inflammatory social media posts made by employees attracting discipline is becoming increasingly common, especially where the posts could harm the organization’s reputation. Although the lawsuit was filed in California, the controversy generated by the dismissal prompts speculation of how a similar scenario might unfold within Ontario’s legal framework.
Facts
Ms. Carano’s termination from the show stemmed from a series of provocative social media posts she made, including one especially contentious tweet likening the treatment experienced by those holding Republican beliefs in the United States in 2021 to the Jewish persecution during World War II. Following the tweet, LucasFilm released a statement suggesting that Ms. Carano’s “social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable”. Her employment was terminated and it was announced that she would not be part of any future projects, including planned spin-off shows centered around her character.
In response, Ms. Carano initiated legal action, alleging wrongful termination of her employment based on her social media posts, which she characterized as unlawfully preventing her political expression, motivated by Disney’s disagreement with her political beliefs. Ms. Carano further alleged that Disney discriminated against her on the basis of sex, contrasting her treatment with that of male co-stars who faced no repercussions for posting similar social media posts expressing their political beliefs. As part of her claim for relief, Ms. Carano sought reinstatement into her role on the show, alongside compensatory, punitive, and emotional distress damages.
Application in Ontario
Employers in Ontario should be aware that employees have a choice of forum to pursue legal action for wrongful dismissal – by civil action through the Ontario Superior Court of Justice (“ONSC”) or by filing a complaint with the Ontario Human Rights Tribunal (“HRTO”).
If an employee seeks civil action, they cannot solely bring a claim for discrimination to the ONSC; it must be grounded in a recognized cause of action, which is typically done within the context of a wrongful dismissal. However, reinstatement is not a remedy available in civil actions, with damages generally being the primary recourse.
Ontario employers would also be well advised to consider off-duty conduct by employees, and how much it truly impacts the workplace. The proliferation of social media has led to an increase in problematic usage. Employees’ social media activity can draw attention from employers, who may need to address the potential reputational harm stemming from the posts. Although employers can discipline an employer for off-duty conduct in certain situations, it becomes more challenging to justify discipline when the posts are not directly linked to or impacting organizational reputation. Employers should also ensure that any disciplinary action is proportionate to the misconduct, especially where termination for cause is being considered. As the threshold to establish just cause is high, generally offensive posts unrelated to the employer may not meet the threshold to establish just cause.
Employers in Ontario are generally free to terminate an employee’s employment without providing a reason, as long as they provide the employee with appropriate written notice of termination or pay in lieu thereof. This differs from California, where employers are free to terminate an employee’s employment at will without providing any notice of termination or termination pay. Although there are certain situations in Ontario where an employer cannot terminate an employee’s employment, there is no equivalent provision preventing an employer from allowing their employees to engage in political activity, as was relied upon in Ms. Carano’s action.
Instead, if this had occurred in Ontario, Ms. Carano would likely have asserted bad faith in the manner of dismissal, alleging discrimination as part of the bad faith conduct by Disney and making a claim for aggravated and moral damages. Depending on whether she had an enforceable termination clause under the ESA, Ms. Carano could potentially be awarded common law notice. If she was able to make out her claim for discrimination, aggravated and moral damages would then be awarded in addition to her damages for notice period.
However, reinstatement is not a possible remedy in a civil action and if Ms. Carano wanted to be reinstated to her previous role, she would need to pursue her claim through the HRTO. She would likely allege discrimination with respect to her employment based on sex and seek reinstatement, along with additional claims for lost wages and general damages. If successful, the HRTO has the power to provide monetary damages for lost wages and for injury to dignity, feelings and self-respect arising from discrimination, along with reinstating the employee back into their former position to make them whole again.
Takeaways for Employers
Employers should note that legal action after a wrongful dismissal is not limited to civil action and employees may choose to bring their claim through the HRTO, which includes reinstatement as a possible remedy. Even where a termination has not occurred, employees may file a claim under the HRTO alleging that an employer breached the Ontario Human Rights Code.
In order to limit damages for wrongful dismissal claims, employers should ensure that they update their employment agreements and policies to avoid potential claims for common law notice entitlements.
Employers in Ontario should also consider whether off-duty conduct such as controversial social media posts can justify discipline, including termination from employment. Although an employee’s social media posts can impact an organization’s reputation, especially where the employee is a public figure, where the content is not sufficiently linked to the employer, it is unlikely to warrant a just-cause dismissal.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
