Tweeting your way to termination: Twitter privacy settings can’t protect you from the law

Nov 25, 2014

Since the beginning of time, employees have privately complained about work and made inappropriate comments to friends and family. Today, however, this venting is happening over the Internet. The internet has major reach and many employees, including professors, sports figures, comedians and writers, have already been terminated because of their Facebook and Twitter activity.

As social media continues to explode, this phenomenon will only become more prevalent and complex. Now is the time for employers to address it, and for employees to understand the implications of their social media comments.

Here is a cautionary tale involving two Toronto fire fighters.

The Facts

In August 2013, the National Post published a story about two Toronto fire fighters who published sexist tweets which violated the employer’s social media and human rights policies. Critically, earlier that year, the Fire Chief had presented a report to Toronto City Council which outlined a plan to increase the number of women firefighters. This National Post article, however, cast the Toronto Fire Service (TFS) in a negative light. After conducting an investigation, the TFS terminated the employment of both male fire fighters. The Union filed grievances under the collective agreement and submitted both grievances to arbitration.

The Outcome

In the fall of 2014, one arbitrator upheld the discharge of one employee; another arbitrator reinstated the second employee and substituted a three day suspension for the discharge. To read the case, click here.

An Example of A Twitter Exchange that Resulted in Discipline

One of the employee’s received a three day suspension for the following exchange:

“ Just stood behind a girl who used the word “like” roughly 300 times to order her coffee. Stay in skool, kidz”

The employee wrote back: ” would swat her in the back of head been considered abuse or a way to reset the brain?”

The other person replied: “maybe foreplay”

The employee wrote: “unlikely, intelligence and a vocabulary is sexy. Saying “like” that amount of times means you have none”

An Example of How A Tweet can be Taken Out of Context

Tweets can easily be taken out of context. Consider the following exchange that was considered in one of the cases. The employee’s comments are italicized:

“where did you get it fixed?”

“A paki store in whitby mall. FM communication. No racism intended.”

perhaps u might want to use a better word than “Paki” since it’s derogatory, just saying. #igniranceisapparentlybliss”

“Nope. This time it’s surprisingly accurate.”

“So does that mean if someone ask you where u got those shoes you’ll say that nigger store in Pickering?#thinkaboutit”

The TFS alleged that the employee’s comments were racist. The employee said he was criticizing the other person for being racist and that he used the N word to make his point because he was black. The arbitrator concluded the employee should not be disciplined for this exchange.

Implications for Employers

The bottom line: an employer can discipline an employee for off duty conduct if it harms the employer’s reputation. Negative press scrutiny generally harms an employer’s reputation.

Judges, arbitrators and other adjudicators will permit employers to discipline employees for failure to follow social media and human rights policies. Employers should therefore seriously consider introducing these policies.

Additionally, an employer should investigate all allegations of wrongdoing before disciplining an employee. Among other things, the employee should be asked to disclose all relevant information. If the employee is not truthful or fails to disclose the requested information then this can justify a harsher form of discipline.

Implications of this decision for Employees

Tweets are considered public comments which can harm an employer’s reputation even if you mistakenly believe the tweets are private. And while you can block access to your tweets, you cannot stop your followers from reporting your twitter posts. I repeat: privacy settings will not necessarily protect you from legal repercussions.

If you identify your employer in your twitter profile or in your tweets then you can be disciplined if one of your tweets harms the reputation of your employer.

What’s more, you can be disciplined for an inappropriate tweet even if no one complains about it. No one complained to the TFS about the tweets of either employee. There was no suggestion that the tweets caused a “poisoned work environment” within the meaning of the Human Rights Code. It appears that someone anonymously brought the tweets to the attention of the National Post.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on employment law issues. Among other things, he helps employers introduce social media and human rights policies into the workplace. If you have any questions concerning your rights and obligations in relation to your employees, you can contact him at 416 317-9894 or at  [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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