By: Jonathan Berg
In more recent years, the increased use of social media has sparked debates on reasonable expectations of privacy. The public nature of social media activity has put into question the line between personal and professional life. It has also raised the issue of whether employees should be held accountable for inappropriate online activity. There have been high-profile stories in Canada and abroad where employees have been terminated for what they have said online and, in the media, outside of work.
What Kinds of Incidents Have Been Happening?
In 2015, outside of a soccer game in Toronto, an individual was participating in a television interview. The individual said “F—k her right in the p—y.” It turned out that the individual in question was an employee at Hydro One. As a result of his conduct, he was terminated from his employment.
An arbitrator’s ruling led to the employee being rehired. However, this incident among many others raises the question as to what employees can do and/or say outside of work whether it be on social media or in person.
Can Employees Be Disciplined for Online Activity Outside of Work?
Whether an employee’s off-duty conduct can give rise to discipline, or even dismissal depends highly on the facts of the matter. The inappropriate conduct must have a connection and be damaging to the employer’s business or reputation.
To determine whether off-duty conduct gives rise for termination, some courts have relied on certain key factors, including whether:
- The conduct harms the company’s reputation or product;
- The behaviour renders the employee unable to perform his or her duties satisfactorily;
- The behaviour leads to refusal, reluctance, or inability of the other employees to work with him or her;
- The employee has been guilty of a serious breach of the Criminal Code, making his conduct damaging to the general reputation of the company and its employees; or
- The conduct makes it difficult for the company to properly carry out its function of efficiently managing and directing its work and workforce. 
It is not necessary that all the above factors exist. Depending on the impact, any one factor may lead to cause for termination. What is important is that there is a justifiable connection between the employee’s conduct and the employer or nature of employment.
Courts, however, have clearly stated that criminal charges alone do not constitute just cause for termination when they arise outside of the work context.
As an Employee, What Should You Be Aware of When Engaging in Social Media Activities?
Employees should be especially familiar on whether their employer has a social media policy in place. If so, employees should be knowledgeable as to what their employer’s social media policy entails. A proper social media policy allows employees to better understand how their use of social media fits into the employment context. If your employer doesn’t have a social media policy in place, it is always better to err on the side of caution.
As shown with the Hydro One employee, there is a high threshold for an employee’s behaviour outside of work to warrant being terminated. There must be a clear link between the employee’s behaviour and their employment in question. Employees should be vigilant as to whether their employer has a social media policy regarding online conduct.
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
 Merritt v Tigercat Industries, 2016 ONSC 1214 (CanLII).
Retrieved from https://www.canlii.org/en/on/onsc/doc/2016/2016onsc1214/2016onsc1214.html