Social Media and Termination: What are your risks?

Recently, several Air Canada employees were caught on video performing their job in a questionable way. The video was then posted on YouTube and viewed over one million times. Air Canada has suspended the employees and is investigating the incident. This incident demonstrates the pervasiveness of social media and its impact on the workplace and employees.

Can an employer dismiss an employee because of social media content?

In Ontario, an employer can terminate a non-unionized employee for any reason as long as it is not discriminatory. The employer must provide reasonable notice of termination or payment in lieu of notice. For more information of wrongful dismissal, see here.

If an employer does not like a comment you have made on Facebook or Twitter, he or she can fire you and give you notice of termination or pay you instead. For example, if you post that you prefer hockey over football and your boss is a hockey fanatic, he could fire you as long as he provides you with reasonable notice.  However, if you post on Twitter that you are attending a religious festival, your employer cannot fire you for that reason because that would be discriminatory and a breach of the Ontario Human Rights Code.

When does a social media comment amount to just cause?

If an employer has “just cause” for termination, the employer is not required to provide notice of termination to the employee. Just cause is serious misconduct.

Employers have started terminating employees for just cause due to their social media activity.

There are several situations where a post on Facebook or Twitter may amount to just cause:

• where the comment has a direct impact on the employer’s business such as harming the employer’s reputation and legitimate economic interests;
• where the comment is disparaging or insolent against the employer or other co-workers; or
• where the comment is in violation of a workplace policy that the employee was aware of such as a confidentiality agreement.

In determining whether there is just cause, the courts will consider where the comments were made and whether the employee should have expected the comments to be publicly available.  The courts will also consider how connected the online conduct is to the employer and the employer’s business.

As is taking place at Air Canada, the employer will often conduct an investigation upon finding social media content it is concerned about. For more about workplace investigations, see here.

Tips for Employees

• Remember that your conduct and commentary online is often visible to everyone, including your employer.

• Keep your negative or critical comments of your employer or co-workers offline and private.

• Respect any confidentiality agreements you have signed and remember that you could be bound by confidentiality requirements even if you have not signed an agreement to that effect.

 If you would like to speak to an employment lawyer about social media and termination or discipline, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).