Social Media Posts and Employment: A perilous playground

This article was prepared for Law Now, published by the Centre for Public Legal Education in Alberta

Social media, and the internet generally, has become the preferred pastime of our age. Social media may have begun its life as a glorified digital bulletin board. But it has blossomed into a place where individuals loudly advocate for political, societal and social justice issues on a whim.

Unfortunately, due to the pervasive nature of social media, some people think the internet is a playground without consequences. And they think they are free to post whatever they wish, however they wish. This devil-may-care attitude can have unforeseen consequences for the employers of these individuals. Employers can face unexpected losses or liabilities because of problematic statements made by their employees on social media.

Off-Duty Conduct

When can an employer discipline or dismiss an employee based on their social media or other internet activity?

If the social media or internet activity takes place outside of the workplace or is not work-related, then an employer must show:

• the activity rises to the level of misconduct AND
• the misconduct is harmful or likely to be harmful to the employer’s interests or reputation.

If an employee is part of a union, arbitrators look at five factors to determine whether their off-duty misconduct is harmful enough to the employer’s interests to justify discipline or termination:

1. The conduct of the employee (grievor) harms the company’s reputation or product.
2. The grievor’s behaviour leaves them unable to perform their duties well.
3. Other employees refuse, are reluctant or are unable to work with the grievor because of the grievor’s behaviour.
4. The grievor’s conduct affects the general reputation of the company and its employees because the grievor is guilty of a serious breach of the Criminal Code.
5. The grievor’s conduct makes it difficult for the company to efficiently manage its work and people.

Other important factors to consider in the context of social media posts are whether the employee:

• indicates in some way that they are an employee of the employer
• represents they speak on behalf of their employer
• makes posts that reference or identify their employer, co-workers, clients, workplace or events at work

When Social Media Posts Warrant Dismissal

A social media post published after work hours may have a strong connection with the workplace to warrant discipline. For example, a Facebook rant from an employee about their incompetent supervisor. Whether or not that post, or similar posts, will allow an employer to terminate an employee for just cause is another question.

As a reminder, employers are free to terminate an employee without cause at any time so long as they give the employee reasonable notice or pay in lieu of reasonable notice. On the other hand, an employer can terminate an employee with cause, without reasonable notice or pay in lieu. In this case, an employer must prove that the employee was guilty of:

• serious misconduct
• repeated neglect of duty
• incompetence
• conduct conflicting with their duties or harmful to the employer’s business, or
• wilful disobedience to the employer’s orders.

Summary Dismissal for Cause

Consider an employee who has made one or many highly inappropriate, inflammatory or otherwise problematic social media posts in a short period of time. In this case, the employer may be able to immediately dismiss that employee for just cause. This is called a “summary dismissal”. Whether it is warranted depends on all the circumstances. Is the misconduct so serious to break down the relationship between the employee and employer?

The 2014 Ontario Labour Arbitration Awards decision in Toronto (City) v Toronto Professional Fire Fighters’ Association, Local 3888 is a good example. The city dismissed the grievor, a firefighter, for sending three misogynistic tweets to various individuals. The National Post later republished the tweets in an article about the pervasive culture of misogyny among firefighters. While the tweets were highly problematic, they also led to widespread media scrutiny of the grievor’s employer. The arbitrator found they could presume the employer suffered damages (losses) where negative press scrutiny and public controversy arises because of an employee’s actions. Furthermore, the grievor showed little to no remorse for his actions and little agreement that his published statements were problematic.

Cumulative Cause for Dismissal

What about where an employee posts multiple inappropriate statements on their social media pages over time, none of which alone meet the threshold for summary dismissal? The employer must give the employee clear and express warnings that continuing to post similar inappropriate or problematic content on social media could lead to further discipline including dismissal. If the employee does not stop, then the employer may be able to terminate for just cause.

The employer must prove the following:

1. The employer gave the employee express and clear warnings about their performance.
2. The employer gave the employee a reasonable opportunity to improve their performance after the warning was issued.
3. After the warning and opportunity to improve, the employee failed to improve their performance.
4. The snowballing failings would harm the employer’s business.

A 2014 decision of the British Columbia Supreme Court, Kim v International Triathlon Union, shows the steps an employer must take before dismissing an employee. The employer (ITU) did not show they had snowballing or cumulative cause to dismiss an employee who had repeatedly published inappropriate comments about her work and workplace to social media and her personal blogs. The employer did not give Ms. Kim, the employee, a clear and express warning that her social media posts were problematic and that further posts would lead to discipline or termination. Instead, Ms. Kim’s supervisor simply told her that her “communication style” was not in line with ITUs. The Court found the employer did not have cumulative cause as they had not advised Ms. Kim of ITU’s discomfort with her social media posts.

Social Media Policies

Notably, in Kim, the employer did not have a written social media policy. A policy can set out what an employee can and cannot do on social media. It can also define what the employer views as “unprofessional conduct”.

It is beneficial for employers to have a clearly written social media policy in place, and to regularly review that policy with their employees. Employees will be less likely to post inappropriate statements or content online. And if they do contravene the policy by making such posts, the employer is within their rights to discipline the employee accordingly.

Any social media policy should include at least the following:

• notifying employees the employer will monitor their social media use
• setting out types of posts and content that are expressly prohibited
• clearly saying an employee may be disciplined, including terminated, if they do not follow the terms of the policy

A Note to Employees

Regardless of whether an employer has a social media policy or not, all employees should be mindful of the potential consequences of any statement or content they publish to the internet.