This is an excerpt from an interview Doug conducted with AdvocateDaily.com
While some believe limiting a person’s right to comment on an employer in their private time amounts to a violation of freedom of expression, one negative Tweet or Facebook post by an employee can tarnish a company’s brand or reputation, says Toronto employment lawyer Doug MacLeod.
The code of conduct reportedly in place at Statistics Canada, which includes the expectation that employees will refrain from making personal remarks about the organization or the government on social media, even if the comments are made during their personal time. The code of conduct also contains policies relating to dress and personal hygiene, and is similar to codes being established at other federal departments and agencies, according to reports.
“I don’t think an employee should be able to disparage their employer in social media. It is biting the hand that feeds you. Many organizations spend a lot of money building a brand or a good reputation,” says MacLeod.
When it comes to codes of conduct in general, MacLeod says their contents depend on the nature of the organization and the interests it needs to protect – essentially, there is no ‘one-size-fits-all’ code of conduct
“A code of conduct is a generic term and normally includes policies that are important to a particular employer. It can include a dress code, a social media policy, a conflict of interest policy, etc.” says MacLeod. Professional athletes, for example, often have morals clauses in their contracts, while some codes of conduct contain a conflict of interest policy, which MacLeod says is important if an employee can receive ‘gifts’ from customers.
From an employer’s perspective, MacLeod says a code of conduct should explain that a violation of the code can result in discipline up to and including termination.
“The courts will generally decide whether the violation amounts to just cause for termination. In one case, a trial judge found that an employee who accepted $1,000 from a supplier had violated a conflict of interest policy in a code of conduct but concluded that the misconduct did not amount to just cause. On appeal, the Court of Appeal overturned the trial judge and concluded that the employer did have just cause to terminate the employee,” he says.
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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