Can you fire an employee for a social media rant?

“In terms of justifying a dismissal for cause, there are a variety of arbitration cases that deal with social media posts,” he explained. “In a unionized environment, there are five factors that a decision-maker will analyze in assessing whether an employee has given just cause for their dismissal through social media.”

Those five factors are:

1. 1. Whether the conduct of the employee harms the employer’s reputation or product;
   2. Whether the employee’s behavior renders the employee unable to perform his or her duties satisfactorily;
   3. Whether the employee’s behavior leads to the refusal, reluctance or inability of the other employees to work with him or her;
   4. Whether the employee has been guilty of a serious breach of the Criminal Code, thus rendering his or her conduct injurious to the general reputation of the employer and its employees;
   5. Whether the conduct places difficulty in the way of the employer properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

“Outside of the unionized environment, the Courts have continued to apply a more general analysis known as the proportionate approach,” continued Wardell. “If you’re looking to justify dismissal for cause in BC, you have to show both that the employee engaged in misconduct, and that dismissal was the appropriate level of discipline in the context of all of the circumstances.”

This means, Wardell told us, that actions that can justify dismissal for cause can vary widely from case to case.  For example, termination for a series of problematic posts might be excessive in the context of an employer without a social media policy or relatively relaxed rules or enforcement.  However, an employer might justify dismissal for cause on the basis of a single problematic post if it has highlighted and enforced rules about them.  This could even be the case for a long-term employee.

“If it’s apparent in your workplace that you take employees’ social media posting seriously, then when you end up in Court you’re more likely to justify termination,” advised Wardell. “To fire someone for cause, their offence must be with respect to something important and different things are important to different organizations.  So, when you tell the Court that your organization takes social media seriously, the Court will be looking to you to prove that.  If you can show that you’ve taken steps to make the issue known as important to your workplace, the Court is more likely to agree with you.”

Mr. Wardell offered an example. “In a BC case, Kim v. International Triathlon Union, an employee made a series of posts that included derogatory comments about her workplace and her boss – in one post, she actually compared her boss to her abusive mother. While this was going on, the company didn’t have a social media policy, and she wasn’t being disciplined or even warned that she might be disciplined.”

“Ultimately, the employer terminated the employee, explaining that her communication style didn’t line-up with that of the organization. However, as they’d made no attempt to correct her behavior, and in the absence of a policy, the Court held that the decision to terminate her for cause was excessive.”  In the result, the employee received damages for lost wages, among other things.

However, the reality for non-union employees is that they can be dismissed without cause for any reason, absent discriminatory reasons.  Employees dismissed without cause are due notice in an amount that may be prescribed via contract or common law.   In some circumstances, the measure of notice due can exceed one month per year of employment, in others it may be limited to a maximum of eight weeks by contract.

“There might be situations where an organization feels that a person’s online postings have made continued employment impossible, but may recognize that the circumstances weigh against those posts being cause for dismissal.” Wardell explained, “In these situations you might provide that employee with notice of the termination of their employment, avoiding the argument of cause altogether.  This may depend, of course, on whether their contract limits notice and, if so, to what amount.”

In Wardell’s view, each case is different and, as is so often the case, preparation through properly implemented policies and contracts can assist in making the resolution of these issues much easier.

Firing an employee over a social media gaffe may be rare, but did you know that two in three workers actively leave an organization because of this employer faux pas? Read more here.