The popularity of social media platforms including Facebook, Twitter, Instagram, LinkedIn, and more have exponentially gained popularity over the last decade. These platforms allow us to remain connected with friends and family, as well as share our thoughts, feelings, and experiences at the click of a button. As social media has gained popularity, it has also become an important aspect of the workplace as employees can use it to increase their engagement with potential customers, as well as stay up to date with the industry. This, however, has also resulted in new risks for employers’ reputations and employees who are at risk of being disciplined, fired or wrongfully dismissed.
Social Media, Discipline, and Termination
But when is it appropriate to discipline an employee for their personal social media use? This has been a topic that employers often struggle with, especially since it is difficult to determine when it is okay for an employer to cross the line into an individual’s personal life and limit their ability to share their thoughts and beliefs. It has been established that an employee’s social media usage should not be a concern to employers unless they are able to establish a legitimate connection between the employee’s post(s) and the workplace. This approach has been used in the context of both unionized and non-unionized employees.
If a legitimate connection can be made between the employee’s personal social media usage and a true negative impact on the workplace, the employer may be justified in disciplining the employee in question. The type of discipline implemented should be determined on a case-by-case basis as the seriousness of the employee’s post(s) can vary. This is particularly important when an employer is considering terminating an employee since an inappropriate response can result in a finding of wrongful dismissal.
A great starting point to understand how the courts have treated off-duty social media use is to examine the case of Millhaven Fibres Limited v. O.C.A.W. This case set out the following five (5) factors in order to determine whether a legitimate connection between an employee’s post(s) and the workplace exists:
- The conduct of the employee harms the employer’s reputation or product/services;
- The employee’s behaviour makes them unable to perform their duties satisfactorily;
- The employee’s behaviour leads to the refusal, reluctance or inability of other employees to work with them;
- The employee has been guilty of a serious breach of the Criminal Code, applicable human rights legislation, etc., thus making the employee’s conduct injurious to the general reputation of the employer and employees; and/or
- The employee’s conduct places difficulty on the employer’s ability to carry out its function of efficiently managing its work and directing its workforce.
The existence of one of these factors must be present for an employer to discipline an employee for their social media use.
An Effective Social Media Policy Can Help
With this in mind, clear policies relaying expectations in relation to social media use in the workplace (and at workplace events) as well as off-duty social media use can be beneficial as it sets the tone for how employees should conduct themselves online in relation to their employment. The policy should be appropriate for the specific industry as well as demonstrate a balance between issues including human rights and employee privacy. It is also important that workplace policies be applied in a consistent manner for all employees.
Investigate and Terminate Where Necessary
Unfortunately, despite taking preventative steps, there are times where terminating an employee’s employment is the appropriate action.
Before terminating the employment of any employees for conduct relating to off-duty social media use, more specifically, termination for cause, employers should consult with legal counsel to ensure that they have the legal standing to do so and to put into place a strategy to minimize liability going forward. Similarly, an employee who has had their employment terminated in relation to off-duty social media use would be wise to contact an experienced employment lawyer to ensure their rights are being maintained.
Return to Blog