Employment in the age of social media
The realization that an employee’s conduct outside of the workplace can be cause for discipline and even termination has recently come to the forefront in the wake of the CBC’s high profile public firing of Jian Ghomeshi. With greater integration of technology and social media into everyday life, the potential of having such conduct made public and result in disciplinary action in the workplace is only increasing.
In an internal memo distributed to staff soon after the termination of Mr. Ghomeshi’s employment, the CBC explained that it decided to terminate Mr. Ghomeshi’s employment after viewing “graphic evidence that Jian had caused physical injury to a woman.” 1 This came after Mr. Ghomeshi advised the CBC that the Toronto Star was investigating allegations that he had engaged in non-consensual “rough sex” with a former girlfriend and following an internal CBC investigation which concluded that “there were no complaints of this nature about Jian’s behaviour in the workplace.” 2
Numerous other allegations relating to Mr. Ghomeshi, some involving alleged misconduct at the workplace, have been made public since the CBC’s termination of his employment, and many of them via social media. However, his alleged misconduct outside of the office was the sole cause for dismissal identified by the CBC at the time of his termination. In its internal memo, the CBC noted that this conduct was fundamentally unacceptable, a breach of the CBC’s employee conduct standards, and “likely to bring the reputation of his fellow employees and [the] CBC into disrepute.” 3
No matter how the Ghomeshi matter unfolds, it is well-established that employers can be justified in disciplining and dismissing employees for employee misconduct occurring entirely outside of the workplace.4 In determining whether such conduct constitutes sufficient cause for dismissal, the court will consider the seriousness of the misconduct, whether it adversely affects the employment relationship, whether the activity was repeated or isolated, and whether the activity was done with the intention of injuring the company.5 Such conduct may also be just cause for termination if it is a breach of legitimate company rules or policies.6
Off duty misconduct resulting in workplace disciplinary action is now increasingly taking place on social media. Facebook, Twitter and various other platforms are becoming the primary vehicles for this activity, and it makes little difference whether users maintain public, private or limited access profiles on these services.7 The courts are concerned with the harm to an employer’s reputation that results from online misconduct, and all employee social media posts that could potentially harm their employer’s reputation now seem to bear scrutiny.
Employers have been found to be justified in disciplining and even terminating employees in a variety of situations involving employee use of social media, including where employees: vent about workplace frustrations and make inappropriate comments about their supervisors and co-workers;8 post racist or hate-filled commentary; and disclose confidential information.9
The CBC’s termination of Jian Ghomeshi’s employment has brought to the forefront the realization that things employees do away from the workplace can have serious consequences. Both employers and employees need to be aware of the dangers and consequences associated with off duty conduct. Employers should develop or update their policies to set standards of conduct, including conduct relating to social media use, communicate these policies to their employees, and enforce them in a consistent manner. Employees for their part should ensure that they are fully informed of any social media policies and standards of conduct instituted at their workplace, and otherwise be cognizant of their off duty conduct, including what they are posting online.
Eleni Kassaris and David Gibbons, Blake, Cassels & Graydon LLP.
1-9 Click on footnote number above for more information.