Online, off duty, off the hook?

With the recent emergence of remote work and the explosion of social media applications such as TikTok, the line between an employee’s work life and personal life has blurred. The workplace is no longer the four corners of an office building, and an employee’s behaviour that occurs both online and off duty can attract significant disciplinary measures. Below are important principles to be apprised of when considering engaging in certain conduct outside of the workplace and off duty.

The “workplace” is anywhere an employer’s business interests can be impacted by an employee’s behaviour. Therefore, employees can be disciplined - and in some cases even terminated - for conduct relating to online or off-duty conduct.

The significant case, International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd, 2011 CanLII 46582, illustrates the principle that inappropriate online, off-duty conduct can be subject to significant disciplinary measures. During a lunch break at work, a construction employee of ThyssenKrupp Elevator posted videos online of his exposed genitals in a gruesome manner. ThyssenKrupp subsequently fired the worker due to these postings.

The worker grieved his termination and took the position that since the videos were filmed and posted during his lunch break, his conduct was “off duty” and therefore did not warrant disciplinary measures. However, the Ontario Labour Relations Board ruled that since ThyssenKrupp had a reputation as a “safety conscious elevator contractor” with a “highly skilled and competent workforce,” the worker’s post posed a real threat to ThyssenKrupp’s business interests. As such, the termination of the worker’s employment was upheld.

Sufficient nexus to employment relationship

As demonstrated in ThyssenKrup Elevator, it is established law in Ontario that to discipline an employee for off-duty conduct, a sufficient nexus to the employment relationship must be established that affects an employer’s legitimate business interest. This includes conduct that is:

• Prejudicial to the employer’s business reputation.
• Renders the employee incapable of performing their duties effectively.
• Causes complications with co-workers.
• A breach of the Criminal Code.
• An interference with employer’s ability to manage operations.

It is an accepted principle in the jurisprudence that it is unnecessary for every factor to be satisfied; rather, even the existence of one factor can warrant discipline or termination of employment.

The Ontario Grievance Settlement Board case, Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Groves), Re 2016 CarswellOnt 11926, provides a salient example of conduct that was found to have no nexus to the employer, and therefore did not warrant discipline. In this case, the grievor tweeted sexually suggestive and discriminatory content about women on multiple occasions. After providing the grievor with a non-disciplinary letter warning him of “serious negative consequences”, the employer suspended the grievor for ten days. The Ontario Grievance Settlement Board found that since there was nothing in the grievor’s Twitter handle or profile to suggest who his employer was or what his job was, there was no evidence that his tweets harmed the employer’s reputation. As such, the suspension was unjustified.

Conversely, in Toronto (City) v. Toronto Professional Fire Fighters’ Association, Local 3888, 2014 CanLII 76886 an arbitrator upheld the termination of a firefighter who tweeted denigrating messages about women, people with disabilities, and visible minorities. The tweets were picked up by the National Post in an article which alluded to diversity and inclusion issues within Toronto Fire Services. In upholding the firefighter’s discharge, the arbitrator found that a sufficient nexus between the conduct and the workplace existed due to the National Post article. The arbitrator also highlighted the fact that the firefighter’s conduct violated a series of workplace policies, including a policy which conveyed that workers must not act in a manner which would “bring discredit to the good reputation of the Toronto Fire Services or its members.” Further, the arbitrator touched on the nature of the firefighter’s profession, noting that firefighters must possess and uphold “honour” in society. In this context, she wrote that the firefighter’s tweets would not create a welcoming environment for women, people with disabilities, and visible minorities should they require his assistance in their homes.

Based on the above cases, it is clear that a contextual analysis is always necessary in determining whether reputational harm was caused. Consider the nature of the work, the conduct in question, the visibility of such misconduct, and the ultimate connection to the workplace when undergoing this analysis.

Best practices for employees

When employees consider their conduct online and/or off duty, it is important to keep the following points in mind:

• Use your best judgment in answering the following questions:
  1. Is my conduct/online posting respectful and appropriate?
  2. Will my conduct/online posting negatively impact my employer?
• Specify if an opinion is your own and not your employer’s.
• Do not post about colleagues without their consent.
• Do not post confidential business information online.

Employer best practices for employers

Employers must always be mindful of the practices they can institute to set their workplace up for reputational success. Consider the following:

• Draft and enforce a robust social media policy that explicitly lays out boundaries and expectations surrounding employee social media usage and off duty conduct.
• Clearly describe consequences of inappropriate off-duty conduct, possibly including termination of employment.
• In contemplating discharge, remember that the standard for “just cause” under the Ontario Employment Standards Act, 2000 is “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and that has not been condoned by the employer." This is a difficult threshold to meet, and unless an employee’s behaviour clearly falls within the ambit, employers should always consider a without-cause termination before a with-cause one.
• Depending on the severity of the conduct, consider taking a progressive discipline approach if employees behave inappropriately online and/or off duty.