Don’t go viral: Practical advice for employers and employees about social media use outside of the workplace

September 22, 2022

Using social media is more commonplace than ever and, unbeknownst to many employees, their communications to their social media networks are often accessible to a larger public audience that includes their employers. Increasingly, the lines between an employee’s personal and professional communications are becoming blurred. It is a common misconception that an employee’s “off-duty” social media activity cannot form the basis of a workplace investigation or disciplinary action by an employer. It is therefore prudent for employers to manage their employees’ expectations about what constitutes appropriate social media use outside of work. Conversely, employees should think twice before posting content on social media that might be perceived as having a negative impact on the workplace.

The legal test for just cause

The Supreme Court of Canada has established a three-part test to be applied when considering whether an employee’s conduct amounts to just cause for termination (the “McKinley Test”). The McKinley Test was re-articulated by the Court of Appeal for Ontario in Dowling v Ontario (Workplace Safety and Insurance Board), and it requires a court to consider the following:

The nature and extent of an employee’s misconduct
The surrounding circumstances
Whether dismissal is a proportional response in all of the circumstances.

Applying these principles, courts have held that it is appropriate to fire an employee for cause if an employee makes inappropriate comments about an employer and/or its other employees on social media or posts inflammatory comments on social media that have an adverse impact on an employer’s reputation or business activities.

Noteworthy cases

In recent years, courts have faced the challenge of determining when a comment or post made on an employee’s personal social media creates a disciplinary problem at work. Although a finding of cause will always turn on the facts and circumstances of the particular case, recent jurisprudence focuses on the impact that the social media activity has on the employer and its reputation, business, and other employees.

For example, in Loughheed Imports Ltd v UFCW Local 1518, an employer alleged cause against two employees who posted “disrespectful, damaging, and derogatory comments” about the company on their public Facebook accounts. It was held that the employees’ conduct would likely damage the reputation and the business interests of the company and, accordingly, there was just cause to terminate their employment. It should be noted that one of the employees was also dishonest when he was questioned about the posts during an internal investigation and that dishonesty was found to be an aggravating factor that supported a finding of cause.

In some circumstances, the courts have been willing to impose very serious sanctions against employees who engage in improper conduct online. In Ceridian Canada Ltd. v Azeezodeen, a disgruntled employee who had recently been terminated for refusing to undergo a background check embarked on an email campaign against her former employer that included threats and conduct akin to extortion. Specifically, the employee threatened to disparage the employer’s business reputation and disclose their confidential information in a public press release if they refused to settle her wrongful dismissal case. After the employer obtained an ex parte injunction, which the employee violated, she was found guilty of being in contempt of court and was sentenced with jail time.

However, improper social media use does not always constitute just cause and, in some circumstances, it has been found to warrant some lesser form of progressive discipline. In EV Logistics v Retail Wholesale Union, Local 580, an employee was fired for cause after creating a blog that included hateful and racist commentary, as well as photos of Nazi paraphernalia. The employer was specifically identified in the blog, and it was fully accessible to the public. Although the arbitrator concluded that harm to the employer could be presumed and that the conduct warranted disciplinary action, they relied on a number of mitigating factors in order to reinstate the employee without compensation for lost wages or benefits. The mitigating factors were the fact that the hateful commentary was not directed at the company or its other employees and the fact that the employee immediately shut down the blog when it was discovered and apologized.

Best practices

Given that the jurisprudence in this area is evolving, employers should take proactive steps to avoid mishaps by implementing policies specifying what constitutes appropriate social media use outside of the workplace. Although the existence of a social media policy does not by itself replace the contextual analysis required by the McKinley test, it is certainly part of the “surrounding circumstances” that will be considered by the courts. It is also important that any policies about social media use are brought to employees’ attention and are consistently enforced.

Similarly, employees should be mindful of the fact that their communications on social media may not be as “private” as they may seem. Since many employers will undoubtedly take issue with any social media conduct that has a negative impact on the workplace, employees should think carefully before posting content on social media.

If you have any questions or require advice, the team at Mathers McHenry & Co is always available to assist.