Employers should be introducing social media policies to set guidelines determining acceptable online behaviour for staff, says Toronto employment lawyer Doug MacLeod.
“It’s an issue that will become more prevalent,” says MacLeod.
A man who posted negative comments about the death of Amanda Todd online was recently fired from his job at a London, Ont., outlet of Mr. Big and Tall, CBC reports. Read CBC
“If an employee’s post violates a policy it could be just cause for termination,” says MacLeod. “Relevant policies included an anti-discrimination policy (if the post is sexist, racist etc.), a confidentiality policy (if the post identifies confidential employer, employee or client information), a non-disparagement policy (if the post criticizes the employer) or a breach of the employer’s code of conduct.”
An employer must consider many factors when determining if a post is acceptable, namely whether it adversely affects the reputation or brand of the company, says MacLeod.
To protect themselves, he says, employees should consider the consequences before sending out a viral message.
“Employees should not identify themselves as working for a particular company, or post anything that reflects negatively on the company’s reputation, or associate themselves with illegal activities,” he says.
When deciding whether a Facebook, Twitter, LinkedIn or other social media post amounts to just cause for termination, the Ontario courts have outlined a three-step approach, says MacLeod.
“The first step is determining the nature and extent of the misconduct,” he says. “The second step involves considering the surrounding circumstances for both the employer and the employee. The third step is determining whether dismissal is warranted as a proportional response; this involves determining whether the misconduct is sufficiently serious so as to give rise to a breakdown in the employment relationship.”
As the social media sphere rapidly grows, MacLeod says it’s a trend that has inevitably made its way into the workplace.
“Employers do background searches on applicants’ public social media postings,” he says. “Employers are introducing policies that cover private postings and employees should be aware of these policies.
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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