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In this era of the online overshare, it is worth remembering that unionized employees can still be fired or disciplined for things done on their own time, while off-duty and away from work.

While the ability of an employer to discipline for off-duty conduct is not new – the seminal case on this point is from 1967 – it has taken on new life in an era when people can (and frequently do) post-their inner-most thoughts online where they are accessible for the world to see.

As we sit in the comfort of our living rooms, iPad or laptop in hand, replete with drafted-but-not-yet-posted commentary, there are a few things we should remember before hitting “post” or “tweet” or “share with my thousand closest friends”.

Firstly, in the right (or more-accurately, wrong) circumstances, you can be disciplined for posts even if you are not making them on behalf of your employer. Secondly, the same is true even if the content of your post does not relate to your work responsibilities or involve your co-workers.

So how do we fulfill our need to reach out to the faceless online masses while maintaining confidence in our job security? The 1967 decision in Re Millhaven Fibres Ltd. v. Atomic Workers Int’l Union, Local 9-567 held that for a discharge arising out of off-duty conduct to be sustained, the onus is on the employer to show that:

  1. The employee’s conduct harms the Company’s reputation or product;
  2. The employee’s behaviour renders the employee unable to perform his or her duties satisfactorily;
  3. The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him or her;
  4. The employee has been guilty of a serious breach of the Criminal Code and thus rendering his or her conduct injurious to the general reputation of the Company and its employees;
  5. The employee’s conduct makes it difficult for the employer to properly carry out its function of efficiently managing its works and efficiently directing its working forces.

It is generally accepted that employers do not need to satisfy all of these factors – conduct giving rise to a single factor listed above may warrant discipline or termination. At the end of the day, if a reasonable and fair-minded member of the public apprised of all the facts would consider the employee’s continued employment as damaging the reputation of the employer, the discharge would likely be upheld. In short, if the post makes an employer look bad, the employee who posted is likely in peril.

Some examples of recent online lapses in judgment that have resulted in the dismissal of unionized employees include offensive comments by an off-duty firefighter, and a bachelor party bonanza unconvincingly-disguised as sick leave. (I could not make this up.)

Fighting Fire With…Ignorance?

In the 2014 decision of Toronto (CIty) v Toronto Professional Fire Fighters’ Association, Local 3888, Arbitrator Elaine Newman upheld the discharge of a Toronto firefighter for statements he made on his twitter account. While I will not reproduce the statements here for fear that my keyboard might catch fire and melt, they were described by the arbitrator as follows:

…the [firefighter] made a series of comments on his Twitter account, many of which were sexist, misogynist and racist. Some were offensive in their discussion of people with disabilities. Others were offensive in their references to homeless people. One invaded the privacy of others. Many were jokes, juvenile in nature, with sexual themes.

Sexism, misogyny, racism and mockery of the disabled and homeless are certainly high up on the grocery list of ill-advised online post topics. This helpful description doubles as a “not-to-do” list.

Other notable characteristics of these tweets include:

  • some were sent to select actresses who are regularly featured in pornography and a former radio host, who would then occasionally retweet; and
  • there was a work related connection to the posts because the firefighter had a photo of himself in his firefighter gear and some of his followers were fellow firefighters.

[Note: If a person is committed to doing something truly offensive, they might want to consider removing their work uniform.]

While Mr. Firefighter claimed that he did not know the information would be available beyond his 29 Twitter followers and he issued an apology, his dismissal was nevertheless upheld as it:

  • Had harmed his employer’s reputation;
  • Impaired his ability to complete his work responsibilities; and
  • Violated his employer’s Human Rights and Anti-Harassment Policy.

With respect to not knowing that the tweets would be widely available, it has been held that “where the internet is used to display commentary or opinion, the individual doing so must be assumed to have known that there is potential for virtually world-wide access to those statements” (Wasaya Airlines LP and A.L.P.A.). So, we can deduce that a limited online following will not be of assistance in responding to termination for online bad sense.

Facebook Posts Used as Evidence of Sick Leave Fraud

From general and protracted offensiveness, we move to outright dishonesty. In the 2014 arbitral decision of Amalgamated Transit Union, Local 113 v. Toronto Transit Commissionthe employee had exhausted his vacation entitlements in order to plan and celebrate his wedding. Shortly before his extended vacation, he called in sick, citing back problems and producing a supporting medical certificate. In the meantime, the Facebook community was abuzz with the news that he was, in fact, in Las Vegas celebrating his bachelor party.

His employer, having been notified by an anonymous informant, popped by his public Facebook page only to see the “injured” employee visiting Las Vegas hotels, casinos, restaurants, bars and tourist attractions.

These photos and related posts were considered by the arbitrator as evidence that the employee had engaged in “blatantly intentional fraudulent behavior”. The employees discharge was upheld by the arbitrator.

Take Aways

While there is no clear off-duty conduct that will always result in termination or discipline, some major concerns include reputational damage to the employer and employee dishonesty. The next time you hold your finger over the post button, be mindful of the fact that social media is never private. And when in doubt, don’t post.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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