We have seen an influx of news reports lately detailing how various individuals have been fired or suspended from their jobs over online comments that they have made relating to the assassination and death of Charlie Kirk. Generally, these news reports set out how people who did not like Charlie Kirk’s views would make controversial and distasteful online comments, posts or videos relating to his death such as statements that rejoiced in Charlie Kirk’s demise. Unfortunately, these statements made their rounds among some Canadians including in the academia. The question arises: can employees face negative repercussions at their job for comments and statements that they make online?
Social media can be a wonderful tool for knowledge, information, and commercial and artistic use. Unfortunately, it can also be a means for the spreading of lies, hatred and discontent. It is pervasive, ever-present and, at this point, a fixture in the daily life of most people. But what most people do not realize is that online behaviour, even if that behaviour is after work hours and does not take place in the workplace, is not beyond the scope of what can constitute cause for the termination of their employment.
The Basics
When it comes to dismissing an employee for cause, the basic premise is that the onus to prove that a summary dismissal is warranted is on the employer. Typically, the employer will have to prove that the reason to dismiss the employee for cause is objectively justifiable and that there is sufficient evidence to prove the employer’s case.
For “off duty” conduct, including conduct that takes place on social media, the employer will have to satisfy at least one of the following key requirements in support of its position that an employee’s termination for cause was warranted:
- An employer must experience an adverse reputational impact as a result of the employee’s social media conduct or online behaviour. For instance, making bigoted or lewd comments will likely result in the employee’s dismissal for cause.
- The employee’s social media conduct or online behaviour results in the employee’s inability to perform their job effectively. For instance, if the employee is a car sales representative of a particular car brand but during their off-time they run a car review vlog in which they constantly criticize a car brand sold by the employer, the employee would be unable to perform their work satisfactorily and in an honest manner. This could result in their termination for cause.
- If the employee’s social media conduct or online behaviour results in the refusal of other employees or co-workers to work with that employee. For instance, if the employee has a weekly blog in which the employee espouses political views that are controversial, and which result in an unpleasant work environment for others in the workplace. This employee may be subject to a summary dismissal for cause.
- If the employee’s online behaviour or social media conduct is criminal, the employer will be entitled to dismiss the employee for cause. For instance, an employee who commits online fraud or participates in threatening conduct will lead to a justified termination of the employee’s employment summarily.
- If the employee’s online behaviour or online conduct is such that it will make it difficult for the employer to carry out its operations or to manage its workforce, the employee’s behaviour may result in a summary termination. For instance, an employee who creates an online chat group with co-workers to discuss work-related activities after-hours but to which an employer has no access may impede the employer’s ability to control work-related behaviour or expectations. An employee engaging in the aforementioned conduct may be subject to discipline or termination.
Freedom of Speech
One thing that comes as a surprise to people is that the “free speech” argument is not relevant to an employee’s airing of views on social media unless the employee, whose online behaviour falls under the employer’s scrutiny, is employed by the government or a government agency. To put it simply, the right to free speech enshrined in The Canadian Charter of Rights and Freedoms is there to protect Canadians from government censorship. The employee’s constitutional safeguards in respect of speech do not apply to private businesses and, as such, an employee’s online statements are not protected under said considerations.
Moreover, in Ontario, employees cannot claim discrimination on political grounds under the Ontario Human Rights Code, 1990 (“Code”). Thus, an Ontario employer is free to terminate an employee for making political statements online with which the employer disagrees. Although the Code protects individuals on the basis of creed, purely political thought or affiliation are not listed as a protected ground. However, the employer may still owe the employee severance depending on the nature of speech involved. For a more in-depth discussion on having political discussions at work, we invite you to review our former blog on the topic here.
Conclusion
Employers do not have carte blanche to terminate employees for any reason. In order to terminate an employee for conduct or statements made on social media, the employer will have to meet a certain legal burden to justify terminating an employee for cause. Moreover, the law takes into account numerous factors in determining whether the employee’s termination for cause is warranted. Among other things, the court will examine the employee’s age, length of service and prior record with the employer. The court will also examine the nature of the misconduct, whether the employer applied progressive discipline in the past and whether termination was the only option. However, it is important to remember that what you post or state online matters, whether you do so during work hours or “off the clock.”
