You Can’t Do That on The Internet

Twenty or so years ago there was a television show called “You Can’t Do That on Television.” A frequent question emerging in employment law is what an employee can and cannot do on the internet.

The Questions

The question is much more complex than it may originally seem. A recent two-day conference produced by the Law Society of Upper Canada canvassed the issue and, perhaps not surprisingly, more questions were produced than answers.

• Does it matter If the equipment being used is employer-provided?
• Does it matter if the employee posts the offending material to the internet during working hours? (How does one define "working hours" any more anyway?)
• Does it matter if the employee is identifiable as an employee of a certain organization or company?

Those questions, and more, still await answers.

Returning the point, there are a few decided cases that have looked at the idea of what one can and cannot do on the internet, even on his or her own time.

Off-Duty Conduct and Just Cause

The law has long recognized that an employee’s off-duty conduct may give an employer “just cause” to terminate an employee’s employment. However, as there is yet to be a reported case from a Canadian Superior Court concerning employee actions on the internet, at least to my knowledge, guidance must be taken by labour arbitration cases.

My reading of the labour decisions leaves me with the impression that employee misconduct on the internet is being treated by labour arbitrators as ‘old wine in new bottles.’ When considering whether the impugned conduct warrants termination, adjudicators often consider the 1967 decision of Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers International Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4, which held that in order for an employer to make out a case for termination of an employee for off-duty conduct, the employer had to satisfy a sufficient number of the following criteria:

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

The Decision in Chatham-Kent

In one of the earliest wrongful dismissal decisions related to the use of social media, the 2007 case of Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance), [2007] O.L.A.A. No. 135, an employee’s termination was upheld on arbitration following the discovery, by her employer, of her blog.

The employee worked at a care home and established a blog, she claimed, to keep in contact with some former co-workers. The employee thought the blog was private to her small group; it was not. On the blog, the employee, amongst other things, posted pictures of residents. In addition to posting the photos of residents, the employee would add text to the photos, such as “What a treat. He has Parkinson’s and ‘freezes up’ so hat he can’t do a thing for himself. The only part of his body that doesn’t freeze up is his damn thumb, that baby can really push a call light a million times a shift.”

The employee maintained her blog on her own time, which is to say that she was “off-duty” when she wrote it. However, after reviewing the employee’s blog the employer terminated the employee. The employee grieved the termination and the termination was upheld.

In resolving that termination was warranted, Arbitrator Williamson focused on the public nature of the blog, the fact that anyone could have access to the employee’s comments, and thus found that the conduct had the potential to harm the employer’s reputation.

Since the 2007 decision in Chatham-Kent other Arbitrators have been more lenient finding that in the non-binary, spectrum based word of labour law, termination has not always been warranted.My observation from a review of those cases is that the focus appears to have shifted from the potential for harm to inferred actual harm, i.e. it matters less that that 'anyone' can read what's on the internet and matters more how many people actually do read what is posted and who those people are.

What a judge would do in the employment law realm, where the decision will be “just cause” or not is yet to be seen.

Takeaways for Employees with Labour Pains

The takeaway for employees would appear to be, if it would be unwise to post one’s comments on a billboard, then it is probably doubly unwise to post them on the internet.

Employees who are not unionized should further note that an employer does not need a good reason to fire you. Ontario employment law allows an employer to fire an employee at any time, for any reason (provided it’s not illegal), provided only that the employer provides reasonable notice. For more on what wrongful dismissal is, see our page What is Wrongful Dismissal?

If you are a worker in Ontario and have been let go for something you have done online, it may be prudent to speak to an experienced employment lawyer; especially one with a knowledge of social media. The professional, experienced, cost-effective, and tech-savvy employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

For employers the takeaway would appear to be, like all cases of termination, a consideration of the context of the situation in which the comments/posts were made is necessary before taking drastic action.

If you are an employer in Ontario and are thinking about terminating the employment of any of your employees, speak with an experienced employment lawyer first. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Us

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

Further Reading

For even more reason as to why your organization needs a social media policy, have a look at this: employee fired after posting video of himself stapling scrotum to a plank of wood while at work using company resources.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.