Can you fire an employee for their social media posts?

From LinkedIn to Facebook, Instagram to Twitter, there's nowhere to hide

BY Emily Douglas 28 Sep. 2020

Today’s culture is dominated by online presence.

From LinkedIn to Facebook, Instagram to Twitter, there’s nowhere to hide – especially if you’ve said something you shouldn’t have.

It’s a source of constant worry for HR departments, trying to plan and prepare for any potential employee rants. Afterall, if your brand is being damaged online by a current or former staff member, it doesn’t take long for your reputation to be scuppered.

HRD spoke to Michelle McKinnon, associate at law firm Harris & Company, who revealed whether or not an employee can be terminated for something they said online.

“Whether disparaging comments about an employer justifies an employee’s termination ‘for cause’, depends on the circumstances and context of each case,” Mckinnon explained.

“A termination ‘for cause’ refers to a termination that arises from an employee’s misconduct or some other unacceptable conduct that causes a fundamental breakdown of the employment relationship.

“The threshold to prove cause is high and the onus rests with the employer to prove that the conduct occurred and that the conduct caused a fundamental breakdown of the employment relationship. It is therefore important to seek legal advice if an employer is unsure about whether an employee’s disparaging comments are serious enough to warrant an immediate termination.

“Being critical of an employer, or making uncomplimentary or negative comments about the employer, will not generally be sufficiently serious to justify terminating an employee’s employment, unless the comments have resulted in some form of damage or potential harm to the employer’s legitimate interests or reputation.

“This concern often arises in the context of employees publicly disparaging their employers on social media platforms such as Facebook and Twitter. It is generally accepted that employees can be disciplined for ‘off duty’ misconduct involving social media, if the conduct negatively affects the employer’s legitimate interests.”

In certain cases, as McKinnon suggested, public criticism of an employer can be sufficient enough for termination. This would generally be the case if the comments were seen to be racist, harassing, or generally discriminatory.

The best way to prevent this from occurring in the first place is to initiate an all-encompassing social media policy for staff.

McKinnon went on to explain that terminations have taken place in the following circumstances:

Where employees posted disparaging comments about the employer and its business and discouraged customers from buying the employer’s products.
Where employees posted comments about the employer and co-workers that were racist, discriminatory or harassing.
Where employees criticized customers of the employer.
Where employees posted confidential information about the employer’s business in an attempt to cause damage to the employer.

“Because of the high threshold to prove ‘just cause’ for a termination, employers should closely assess the context and circumstances, and seek legal advice if needed,” she told HRD. “Employers can expose themselves to wrongful dismissal claims and be liable for damages, and should therefore approach these types of cases with caution.”