Employee commentary, social media and the municipal employer

”The medium is the message”. The wisdom of these famous words written by Canadian philosopher Marshall McLuhan is felt so acutely today. Communication media, its accessibility and its impact on how information is received, have evolved dramatically over the last two decades. During the same time, society has undergone fundamental reflection and upheaval; phenomena that have benefitted from and been aggravated by, changing media.

At one point, people lacked the tools to communicate their opinions widely and with any degree of impact. Social media has fundamentally changed this. With one push of a key, commentary, its effects, and its potential to impact the behaviour of others, can be instantaneously transmitted around the world. Like no other time in history, misinformation and offensive and discriminatory comments can be widely distributed with ease, with the power to encourage and embolden behaviour on the part of many others.

All of this has created legal issues for employers; particularly public sector employers:  how can they regulate employees’ social media activity, public commentary and political statements? Put another way, when does this activity become a matter of legitimate interest for the employer? These questions are the focus of this article.

Traditionally, the law has drawn a line between an employee’s work life and private life; employers could regulate employee activity during the former but it was supposed to be hands off in the later. An employer had to demonstrate how an employee’s off duty conduct impacted its interests before being allowed to intrude in this area.

Modern communication has challenged the analytical usefulness of a work life/private life distinction. While an employee’s activity may be personal and done on their own time, it may still have an impact on their employer:  think of a public health nurse’s on-line posts criticizing public health COVID-19 rules, a LTC employee posting a video claiming COVID-19 vaccines are dangerous, a federal government employee parking her car, festooned with anti-Prime Minister stickers, in a publicly visible employee parking lot, or more troubling, a customer service representative posting racist material in an on-line chat group. All of this activity impacts the employer’s reputation and interests, workplace interactions and relationships, and may even lead to legal liabilities.

The arbitral test that is used frequently today for determining if off-duty conduct can be subject to discipline was set out in Re Millhaven Fibres Ltd. v. Atomic Workers Int’l Union, Local 9-670, [1967] O.L.A.A. No.4. The award held the employer to the onus of demonstrating that:

1. the conduct of the grievor harms the Company’s reputation or product;
2. the grievor’s behaviour renders the employee unable to perform his duties satisfactorily;
3. the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
4. the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees;
5. places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

Discipline may be sustained if any one of these factors exist. However, upholding the specific level of discipline issued will depend on whether it was appropriate in the circumstances.

What should municipal employers do when faced with these kinds of behaviour? The most important consideration is whether there is a connection between the behaviour and the employer’s interests. Here are some questions to ask:

1. Was the employer identified in the comments or activity? Did a posted picture show the employee in a vehicle bearing the employer’s name or in a location connected with the employer, or does the employee’s social media profile or other posts name the employer or connect the employee to the employer (perhaps through pictures of the employee in uniform)?
2. Were other employees recipients of the comments or material or did they have access to it? Were the posts in employee-only chat groups, or were other employees connected with the posting employee or named in the comments or material?
3. Would the conduct adversely impact working relationships? Would they offend other employees making them unwilling to work with the employee?
4. What is the nature of the employer’s interests and how are the comments or activity objectively contrary to same? Is the conduct contrary to the employer’s identity, mandate or objectives, or its reasonable expectations of the employee?
5. Is the employer and/or posting employee in a position of public trust? For example, do they serve a vulnerable or marginalized community?
6. Does any of the conduct create potential liabilities for the employer? Consider harassment and discrimination under health and safety and/or human rights legislation, or benefits and payments under insurance plans.
7. Did the conduct violate any workplace policies, such as discrimination, harassment or social media policies, or Codes of Conduct?

How does an individual’s right to freedom of expression under the Charter of Rights and Freedoms play into all of this? Technically, the Charter only protects Canadians from government actions. In the workplace, this means that the Charter protects an employee from an employer who is subject to the Charter (i.e. public sector employers). But this protection does not mean that public sector employers do not have the right to control employee expression in the workplace. In fact, they must; all employers must provide their workforce with a safe work environment. The bottom line is rights and freedoms in the Charter are not absolute. Freedom of expression does not arm employees (even public sector employees) with a right to spew harmful views. Accordingly, infringement of the right to freedom of expression by government employers may be justified, depending on the circumstances.

Having discussed these kinds of questions internally, the next question is what can the municipal employer do about it? Can the employee’s employment be terminated? The answer is that it depends, but yes – in some cases. However, before issuing any form of discipline in these sensitive cases, employers would be well advised to obtain legal advice. Additionally, discipline for off-duty commentary may, in today’s climate, raise media and political interest. Therefore, employers should also consult with government or Council relations officials and their communication departments.

Employee social media and commentary, in today’s climate, create real issues for municipal employers. While things are different now then they were in the past, municipal HR professionals should manage as they always have:  carefully review these situations in an objective, well informed fashion, and seek advice from your colleagues when required.

* The authors wish to thank Rebekah Timm, Articling Student at Miller Thomson LLP for her research assistance in preparing this article.

This article was originally published in the Fall 2022 issue of the Ontario Municipal Human Resources Association’s ECHO Newsletter.