Employment lawyer on free speech and employee social media posts

Interview Summary

A Delta employee was recently terminated due to posting a cartoon on her social media post. As most employees and employers are avid users of social media, questions surrounding free speech and privacy have arisen in many workplaces. Should an employer be able to dictate what an employee can post on their own time outside of work hours? Are there legal consequences to certain social media behaviour?

Mackenzie Irwin, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP joins John Oakley on 640 Toronto to answer these questions and more on employee rights.

Interview Notes

• Employment laws in relation to Delta employee terminated over cartoon: This case is an example of an employer overstepping their boundaries and monitoring employees’ behaviour in their free time and on personal accounts. The action of this employee would not have led to a termination for cause if this situation had taken place in Ontario.
• Termination for cause in Ontario: Canada has very robust employment laws that protect employees who have been terminated. Termination for cause in Ontario is typically very difficult to prove and in most cases, employees are owed severance if let go by their employers.
• Clauses dictating conduct of employees outside the workplace: All employer policies have to be reasonable. Employers will have a difficult argument to make in Ontario if they choose to let employees go due to behaviour outside of the workplace, particularly if it is conduct exhibited on social media.
• Political statements made by employees: The employee terminated by Delta did not in fact create the cartoon that she shared on her social media account. There are also questions of discrimination regarding this case.
• Social media policies in the workplace: The policies implemented by employers must be considered reasonable. It is important to note that employees who choose to post from a work-related account could face more challenges than that of a private or personal page on social media.
• Awarding damages to an employee for mental and emotional suffering: The Delta employee will have to be able to substantiate in court and should then be awarded damages in addition to severance pay. Damages are created in order to compensate an employee in accordance with how an employer has conducted a termination. Compensation for termination can occur if an employer has incorrectly terminated an employee for cause and has not initially offered severance pay.
• An advantage in a settlement rather than court: Ultimately, this case does not bode well for Delta especially considering the political climate.