obligations, causes other employees to refuse to or be reluctant
to work with that person or inhibits the employer’s ability
to efficiently manage and direct the production process.
Off-duty conduct can lead to termination in certain circumstances.
Termination for conduct that occurs away from
the workplace will depend upon the severity of the misconduct
engaged in by the employee, the severity of harm the
employee has caused to the company or a co-worker, the
employee’s history and employment record and whether the
employee has taken steps to accept the consequences of his
or her actions and has acted to repair the situation.
Once something private becomes public, employees are at
risk of discipline and recourse from employers. Accordingly,
care and caution must be exercised before posting something
on social media.
In a decision of the Ontario Labour Arbitration Board, a
Toronto firefighter’s employment was terminated for inappropriate
off-duty use of his Twitter account. The firefighter
made a series of comments on his personal Twitter account,
which were sexist, misogynist and racist. Some comments
were offensive in their discussion of people with disabilities,
some were offensive in their references to homeless people
and one comment invaded the privacy of others.
The firefighter claimed that he thought he was only communicating
with his followers and that his privacy settings
prevented the public from accessing the content. He found
out this was not the case when three of his tweets were
featured in an article published by the National Post. The firefighter
clearly identified himself as a Toronto firefighter on
his Twitter account.
The Ontario Labour Board stated:
“… but when engaging in social media use, it is my
view that the user must accept responsibility when the
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content of his or her communications is disseminated
in exactly the manner promoted by the social media
provider. This is what social media is intended to do.
Once we use these devices, once we load that gun, it is
potentially dangerous.”
The Labour Board found that there was a social media
policy in place; however, the firefighter had not been adequately
trained on it.
The evidence presented before the Labour Board established
that there was actual, as well as potential, damage to
the reputation of the employer in the circumstances.
The termination was upheld on the basis that the remarks
illustrated that the firefighter could no longer perform his
employment duties to satisfaction because his position
required him to bring honour to his uniform. The Labour
Board stated:
“I have to wonder if a deaf person, a woman in labour, a
homeless person, a member of a visible minority group,
apprised of his comments, would welcome this man
into their home.”
Social media has become the primary mode of communication
and dissemination of information on the Internet.
The mass broadcasting abilities of social media can be dangerous
to those who are not cognizant of the consequences
that their “private posts” may have on their public life or
employment. Privacy settings are a helpful aid but are not
a guarantee. Individuals must be properly informed of their
rights and obligations and of their employers’ rights and obligations
with respect to the use of social media both in their
private lives and their lives as employees.
Content posted on social media may be viewed as a representation
of not only yourself, but also a representation
of those associated with you in your personal and professional
life. A good rule of thumb for those concerned about
the implications that a private post may have on their professional
life: Do not post anything on your personal social
media page that you would not post on a bulletin board in
your workplace.
Keith Senden is an associate at
Fillmore Riley LLP who practises
primarily in the areas of corporate
and commercial law as well
as wills and estates law. You may
reach him at 204-957 8355 or
ksenden@fillmoreriley.com.
LEGAL
The mass broadcasting abilities of social media can
be dangerous to those who are not cognizant of the
consequences that their “private posts” may have
on their public life or employment.
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