Social media and dismissals

Exclusive to Canadian HR Reporter from Rudner Law.

Can you fire an employee for posting something objectionable on their personal social media account? It seems like we have been fielding variations of this question on a regular basis since the dawn of social media.

However, the events of the past several months have turned everything up to 11, and there are multiple stories in the news of people being dismissed or disciplined for something they posted online. 

Dismissing someone for their conduct outside of work, including their social media posts, is always going to be complicated. However, it may be possible to do so, potentially without having to pay the employee anything.

Off-duty conduct and dismissals

Normally, what an employee does in their free time is none of the employer’s business, and the decision to dismiss is typically going to be based on the employee's conduct at work. However, an employee's off-duty conduct, including their social media posts, may support a decision to dismiss for cause. 

In assessing whether the employer had cause to dismiss, a court will look at what the employee posted, and review a number of criteria. The court will consider whether the employee can be connected to the employer by the social media account.

If the employee can be connected to their employer, the court will consider whether the employee's post could bring the employer into disrepute if it became known to the public. Even if this is not readily apparent, it is usually easy to connect an individual’s social media account with their employer.

The standard applied in at least one arbitration case regarding an employee's social media activity was whether a reasonable and fair-minded member of the public, if apprised of the facts, would consider that the grievor’s continued employment would so damage the employer’s reputation as to render employment untenable.

If the employee's conduct can be established to meet this standard, the court will look at this in the context of the employee's employment, including their record and any employer policies addressing the behaviour. If the court finds that the employer had cause to dismiss based on the social media post then the employee will have no entitlements at law. 

Dismissing without cause

It is important to distinguish between a dismissal for cause and a dismissal without cause. An employer has discretion to dismiss an employee without cause at any time, without a reason. This discretion comes at a price: the employer must provide the employee with notice or pay in lieu of notice.

The amount can be governed by the employee's employment agreement or, if one of these is not in place, by the common law. The above-noted test will only come into play when the employer is dismissing the employee for cause.

Note that an employer may not rely on a dismissal without cause to avoid addressing a human rights complaint or any other attempt by the employee to exercise their rights under a statute. They are also prohibited from dismissing an employee for something that relates to a protected ground under human rights legislation, though it is worth noting that few jurisdictions protect an employee's political beliefs. 

Just cause and termination

What if the employer wants to terminate the employee's employment and not pay them anything? In that case, the employer will need to show that it had just cause to terminate the employee's employment.

Just cause is a contextual analysis where a court will review the employee's alleged conduct, the employer's ability to establish that this conduct took place, and the impact of this conduct on the employer-employee relationship, and whether this can be salvaged.

The court treats an assertion of cause with a high degree of gravity, and not just because a successful finding of cause impacts the employee's entitlement at common law. A dismissal for cause has an immediate negative impact on the dismissed employee.

An assertion of cause at the time of dismissal will hinder an individual's ability to look for replacement employment and may impact the employee's access to Employment Insurance (EI). It can also have a severely negative impact on an employee's psyche. 

For this reason, where the court does not find cause, the employee will be awarded reasonable notice at common law. Also, where the court finds that the employer's decision to assert cause was malicious, the court may order the employer to pay damages for having breached its obligation to conduct itself in good faith.

Further, an employer who asserts cause may not then revert to its employment agreement to limit the employee's entitlement. Finally, the employer's conduct may also have a consequence to the assessment of costs at the end of the trial.

Policies, enforcement by HR

An employee's off-duty conduct, including what they post on social media, can be used as a basis to dismiss for cause. However, like any dismissal for cause, the employer can still have some exposure to liability. An employer's position that it has cause to dismiss an employee is just that: a position. The only arbiter whose opinion matters is that of the judge reviewing the case when the matter reaches trial.

Where an employer cannot establish that it had cause, it will be ordered to pay the employee's entitlement to reasonable notice at common law, with potentially more damages to be awarded.

From the employer's perspective it's worth having a policy in place reminding employees of the impact of this conduct on the employee's employment, and that it may be met by termination for cause. This policy should be written and distributed to every employee, with the employee signing off to confirm their receipt.

The employer also needs to enforce the policy: inconsistent enforcement may lead to the employer being unable to rely on the policy as a basis for a cause dismissal. A policy of this nature puts an employee on notice as to the employer's expectations, which may also stop an employee from posting anything objectionable in the first place.

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].