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Social Media use at Work

Often, people think that what they post online in their personal time has no effect on their job reputation and that they cannot face consequences. This is false. If employees are not careful of what the post online, they may damage the company’s reputation. As such, the workplace could impose disciplinary measures on the employee.

This includes online posts that are discriminatory, harassing, or otherwise negatively affecting the company’s reputation. In this scenario, the employer could reserve the right to impose penalties or sanctions, which might include a verbal warning to the employee or termination.

There are a number of factors at play when determining what kind of social media use is appropriate, and what kinds of posts might result in disciplinary action from one’s employer. Some factors include the relationship or connection between the employee’s behaviour and their job, as well as the nature of the post, and the post’s privacy settings. A more direct connection between an employee and their employer, and an inflammatory, public post would make it more likely that the employee will face repercussions for their online conduct.

To clear up any confusion, employers might benefit from having clear, explicit workplace policies in regard to social media use which specifies appropriate Internet usage and associated penalties. Employees must understand that their online actions, even when off-duty, can negatively impact their careers if they damage the company’s reputation or their own credibility. The guidelines for off-duty social media use in Ontario is a balancing test that hinges on reasonableness and relevance to employment.

What is Off-Duty Social Media Use?

Off-duty social media use refers to when an employee engages with social media outside of work hours. This can include instant messaging, public posts, videos, and other online activities. Social media encompasses a wide variety of networks such as Facebook, Instagram, X, SnapChat, and more.

A common question is whether employees can get in trouble for the kinds of things that they post online, even if they posted it while they were off-the-job. The short answer is absolutely, the employee could still get in trouble in cases where the online conduct goes directly against their employer’s business interests.

For example, if an employee posts insulting comments about their company on Facebook, depending on factors such as its visibility/privacy settings, that employee could face consequences from their employer. This especially applies in cases where the employee’s online conduct somehow damages their employer’s business reputation.

Can I get in trouble for what I post online on my own time even if it is unrelated to my employment?

To put it simply, yes. Employers in Ontario have the right to fire workers for their social media posts. Employers must maintain a pleasant and supportive work environment notwithstanding employees’ freedom of speech, which includes keeping an eye on what their employees say in public when they are not at work

If your personal social media account violates any applicable workplace laws, rules, or regulations, you might have to deal with repercussions at your job. You could face repercussions such as discipline up to and including dismissal.

Understanding Workplace Investigations

What type of social media behaviour is unacceptable?

It is advisable to evaluate social media behaviour in light of any relevant workplace policies, such as those pertaining to social media use, code of conduct, anti-violence, and harassment. It’s important to keep in mind that, as previously mentioned, there are no legal safeguards for violent or discriminatory speech, and that actions or remarks may violate multiple workplace policies. An extra layer of liability protection can be gained by directly connecting the social media behaviour to a potential policy violation.

The use of social media may be grounds for discipline on its own if it has a detrimental effect on employee relations or the workplace. Serious conflict at work or the incapacity to carry out one’s duties due to social media use are acceptable grounds for disciplinary action.

Some red flags in terms of social media conduct that could get someone in trouble include employees spreading falsehoods or lies, posts misleading information about the company they work for, or portrays the company in an unreasonably bad light. These are all actions that might be subject to disciplinary action in certain cases. These kinds of behaviours are seen to have a negative impact in terms of public relations.

Some examples of inappropriate social media conduct include misogynistic or hateful posts available to the public, threatening co-workers, posting disrespectful content, sharing drug or alcohol use, using profanity, posting disparaging comments about clients, co-workers, or the employer online, or sharing sexually explicit or obscene images.

What kind of penalties will I receive for inappropriate off-duty social media use?

If your personal social media account violates any applicable workplace laws, rules, or regulations, you might face repercussions at work. These consequences can include disciplinary actions up to and including dismissal.

You might receive disciplinary action, ranging from an unpaid suspension to a warning or reprimand. The severity of the offence and whether it is a first-time or recurring offence will determine the harshness of the disciplinary penalty.

Termination for cause is another possibility. In more serious situations, such as when the employee’s social media behaviour constitutes harassment or discrimination, violates confidentiality, or seriously harms the employer’s reputation, the employer might be able to terminate the employee for cause. This implies that the worker would not be eligible for severance pay or notice.

The use of social media could even result in legal action. For example, an individual’s employer might wish to file a lawsuit against the employee if the social media activity includes defamation, violates confidentiality agreements, or contains other violations of workplace policies and rules.

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Recent Cases

Teamsters Canada Rail Conference v Canadian Pacific Railway Company, 2019 CanLII 131167 (CA LA)

In this case, S. K. was fired because of her off-duty social media posts. The Canadian Pacific Railway (CP) asserted that the posts’ substance was not appropriate and that the behaviour was unbecoming of an employee.

In these social media posts, the plaintiff S. K. made derogatory remarks about CP, the corporation in which she worked. She referred to CP’s ethics guidelines as a “comedy,” for instance. This disparaging remark insinuates that the company’s policies are lacklustre.

The arbitrator concluded that CP’s investigation lacked impartiality and fairness. The investigating officer displayed prejudice throughout the investigative process by excluding pertinent information and mistreating S. K. when she was being questioned. Moreover, there were concerns over the legitimacy of the investigation because it was based on an apparently baseless complaint.

The arbitrator came to the conclusion that the evidence did not support dismissal, even in the event that the investigation had been fair. Despite being unprofessional, S. K.’s posts did not justify her termination. Therefore, her conduct should have resulted in less disciplinary action taken against her.

Not only this, but S. K.’s behaviour after she got fired made her face even more consequences even after the fact and made it harder for her to gain a favourable remedy. Her posts after dismissal, which included insulting comments about CP and specific employees, demonstrated a dysfunctional relation in the employer-employee dynamic. These actions showed a flagrant lack of respect and compatibility for her job and did not warrant the reinstatement of her job. This case shows that even behaviour that one displays after they have already been terminated from their job can still have consequences.

As a result, the arbitrator held that S. K.’s reinstatement of her position was not a feasible option. Instead, S. K.was awarded appropriate monetary compensation for the unjust termination. This is because even though her behaviour warranted some type of disciplinary action, it did not justify the severe penalty of termination that was initially imposed by CP.

Toronto (CIty) v. Toronto Professional Fire Fighters’ Association, Local 3888, 2014 CanLII 76886 (ON LA)

The main legal issue matter under dispute in this arbitration case was the firefighter’s termination due to his inappropriate and unbecoming usage of social media. Following the discovery of his inflammatory tweets, the City of Toronto fired the grievor, M. B. for Racist, misogynistic, sexist, and other offensive statements were included in these tweets. Several workplace policies, including those related to anti-harassment and human rights, were violated by the grievor’s discriminatory remarks.

According to the decision, the grievor’s tweets were found after a National Post report that seemed to have exposed a potentially hostile and poisonous culture towards women in the Toronto Fire Services. The article’s pointed to tweets with inappropriate content that was deemed to be damaging to the Toronto Fire Services’ reputation. While acknowledging that the tweets were sent, the complainant claimed that they were meant to be private messages between friends and followers. In these cases, there has been a general trend in that the privacy settings of one’s posts can make a difference.

Here, the main legal issue for the arbitrator was whether the grievor’s online posts were grounds for a justified termination. The Association said that the grievor’s prompt apologies and subsequent sensitivity training proved that the punishment was unduly punitive. Nevertheless, the arbitrator that the grievor’s acts had done considerable harm to the employer’s reputation.

Not only this, but it affected the employee’s ability to carry out his duties, which include upholding the public’s confidence and respect toward the firefighting profession.

In the end, the arbitrator determined that the grievor’s actions were reasonable grounds for termination. The ruling rejected the claim and shows how crucial it is to follow workplace regulations, particularly in positions that demand a high level of public trust.

Amalgamated Transit Union – Local 1587 (Juteram et al) v. The Crown in Right of Ontario (Metrolinx), 2023 CanLII 72192 (ON GSB)

This arbitration case deals with the unfair termination of five GO Transit bus drivers. According to the Union, Metrolinx violated the collective bargaining agreement by firing these workers without just cause. Using their personal cellphones after work, the bus drivers—all with seven to ten years of service and no past disciplinary records—were participating in private WhatsApp talks. In these discussions, there were remarks made about the bosses and other coworkers that were seen to be insulting and disparaging.

After somebody forwarded these texts to the superiors at Metrolinx, Metrolinx commenced an investigation that resulted in the drivers’ termination. The inquiry drew criticism for a number of reasons. First off, by failing to provide a fair and unbiased inquiry, the investigative process violated the company’s own Workplace Harassment and Discrimination (WHD) Prevention Policy. Although the affected employee refused to cooperate or make a complaint, Metrolinx continued with the investigation in violation of the policy’s requirement that complaints be made by the individuals who were harmed.

Furthermore, it was determined that the investigator’s techniques were biased and unreasonably invasive, especially when it came to obtaining lengthy private messages from the workers’ smartphones under the fear of reprisal or retaliation for their disobedience.

Even though the comments made in the WhatsApp chat were hurtful and not nice to read, the arbitrator ultimately stated that the off-duty comments and text messages were supposed to remain private and had no detrimental effects on the workplace. In a general sense, it would not be fair to punish people based on the conversations that they have behind closed doors, especially if it does not directly impact the workplace or create any direct harm.

The fact that there was a two-year delay in investigating this matter further weakened MetroLinx’s case. In the end, arbitrator ordered the employees’ reinstatement, full repayment for any lost pay and benefits, and the removal of any disciplinary records in relation to this incident.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.