By: Nastaran Roushan

Overview

The benefits and disadvantages of social media have been debated within many contexts, including in the employment realm. The benefits are many. Social media is an inexpensive tool for marketing and networking. It is also an important mode for employees’ freedom of expression. The disadvantage occurs when employees disassociate their “personal” lives, as publicized on the internet, from their professional lives and employers. 

Many employees are surprised when they learn that employers have a right to investigate and discipline them for their social media posts, even when the posts are published on personal accounts, personal computers and on personal time. Similarly, many employers are surprised when they learn that social media misconduct – which is typically on display for millions of people – attracts the same investigative principles as non-virtual misconduct allegations. Employers must still tread carefully when investigating and responding to employee posts, regardless of whether the content contains discrimination, insults management, or leaks internal information. In the context of off-duty social media activity, which often blurs personal and professional boundaries, engaging a defensible process becomes even more critical. 

This article outlines how Canadian employers can “litigation-proof” their investigation and disciplinary process when addressing employee social media misconduct. 

1. Back to Basics

Investigations leading to discipline or termination should be confidential, independent, procedurally fair, and timely. Even if the employee clearly acted inappropriately, a flawed investigation can undo an otherwise valid decision. 

2. Ensure Procedural Fairness

Canadian courts expect employers to follow a fair process. At its most basic, this includes:

1. informing the employee of the concern and the evidence;
2. giving the employee a meaningful opportunity to respond; and
3. considering the employee’s explanation before making a decision.

Collective Agreements may require additional safeguards, such as the attendance of a union representative to an investigative meeting. Additionally, an employee should be accommodated in the investigative process if an accommodation is required for them to fully and fairly respond to their employer’s concerns. 

3. Have a Clear Policy Foundation 

Your investigation is only as strong as the policies that support it. Ensure that your code of conduct, social media policy, and disciplinary procedures:

• clearly state that off-duty social media conduct may be subject to discipline if it affects the workplace or the organization;
• define unacceptable content, such as harassment, hate speech, and breaches of confidentiality; and
• are regularly communicated and consistently enforced.

If you do not have a policy in place at the time of the incident, proceed cautiously – discipline is still possible, but expectations of appropriate and inappropriate activity must be reasonable and understood.

Regardless of whether or not you have a policy, a conclusion that words or phrases constitute misconduct should be objectively rational. Political statements can be particularly difficult to justify as misconduct. Consider whether an individual or group who does not strongly disagree with the political statement would classify the post as harassment, hate speech, or discrimination. Employers should understand and appreciate the role of social media in providing their employees with the freedom to express their political opinions – even if those opinions are contrary to their own or those of other employees.

4. Collect and Preserve Evidence Lawfully and Transparently

Do not rely on hearsay or third-hand reports. If the social media content is public, take accurate screenshots, record the URL and timestamp, and confirm who had access to the account (tip: use applications such as ArchiveWeb.Page to record the content). If the material has been deleted, use websites and applications such as the Wayback Machine to find the archived version. If the material is private or is obtained from a closed group, be prepared to show how it came into your possession.

Avoid intrusive surveillance or pressuring employees to share content. Always document the chain of custody and any actions taken to verify authenticity.

5. Apply the “Millhaven Test” to the Misconduct…Or Just Follow Routine Wrongful Dismissal Case Law

In Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, [1967] O.L.A.A. No. 4 – a decision rendered decades before the launch of modern social media – the Ontario Labour Relations Board stated that termination for off-duty conduct conduct may be warranted in a unionized setting if the the employer chan show that:

1. the conduct harms the employer’s reputation or product;
2. the conduct impairs the employee’s ability to perform their duties satisfactorily;
3. the conduct leads to refusal, reluctance, or inability of other employees to work with the individual;
4. the employee has been guilty of a serious breach of the Criminal Code, resulting in his conduct being injurious to the general reputation of the employer and its employees; or 
5. the conduct makes it difficult for the employer to properly carry out its function of efficiently managing its works and directing its workforce.

The above considerations are not conjunctive. One of them may be sufficient to attract discipline or termination in a unionized setting.

Millhaven was applied in the era of social media in Toronto (City) v Toronto Professional Firefighters Association, Local 3888 (Edwards), 2014 CanLII 62879 (ON LA) where a firefighter had engaged in a discriminatory and violent exchange about women on a public Twitter account. The tweets were published and discussed in an article by the National Post, an investigation was conducted, and the firefighter was terminated. The Union grieved the termination, arguing that it was excessive discipline. The City of Toronto and the Toronto Fire Services argued that termination was justified because the tweets had harmed their reputation. 

The Arbitrator considered a variety of facts and circumstances in concluding that although discipline was justified, the termination was disproportionate. For example:

1. the firefighter had identified himself as a “Toronto Firefighter” in his Twitter profile and had not stated that his posts were personal and not those of his Employer;
2. firefighters are held to a higher standard in their personal life than other types of workers because the public entrusts them with their safety and security;
3. the comments were demanding towards women;
4. the Toronto Fire Services was trying to hire more women at the time of the tweets;
5. the employee had apologized numerous times for his tweets;
6. the employer’s policies about the use of social media had not been publicized to its employees;
7. only one of the three tweets found unacceptable by the employer were found problematic by the Arbitrator;
8. the one problematic tweet was not directed towards anyone in the workplace; and
9. the one problematic tweet was an isolated incident of the employee’s inappropriate and disrespectful behaviour towards women.

Outside of labour arbitration, there have not been many court cases addressing off-duty social media use. In Kim v. International Triathlon Union, 2014 BCSC 2151, a non-unionized employee was terminated without cause for her off-duty social media posts. The employee, who was the Senior Manager of Communications, wrote a blog post (amongst other social media gaffes) complaining about her treatment at work. The court did not refer to arbitration case law in its analysis of the content of the posts, but simply relied on wrongful dismissal jurisprudence in concluding that the employer’s just cause rationale was rejected because the employer “did not give the plaintiff an “express and clear” warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her”.

6. Document Everything

Lack of documentation may be fatal if your decision ends up in front of an arbitrator or a judge. Your file should include:

• the original complaint or reason for initiating the investigation;
• screenshots, interview notes etc.;
• evidence of the employee’s knowledge of your social media policy;
• the employee’s response to the investigation;
• any “last chance” warnings and opportunities given to the employee to rectify their behaviour;
• evidence of the negative impact of the social media post on the workplace and/or organization; and
• a written rationale for any disciplinary action.

7. Apply Consistent Standards

Do not treat one employee differently from another unless there is a clear and justifiable reason to do so. Disparate treatment can support claims of discrimination, retaliation, or wrongful dismissal. If you disciplined one employee for similar conduct in the past, follow that precedent unless the circumstances are clearly distinguishable.

8. Choose the Appropriate Discipline Wisely and Proportionately

Discipline should match the severity of the misconduct. You should consider mitigating factors such as:

• The length of the employee’s service;
• the employee’s prior disciplinary history;
• the employee’s remorse or corrective action; and
• the public nature and impact of the social media post.

Ensure that the employee has had an opportunity to rectify their behaviour. Termination for cause is the most severe penalty and should only be used when the conduct is egregious and other responses would be inadequate.

Final Thoughts

Investigating and responding to off-duty social media misconduct is a logistical and legal minefield – but one that can be navigated successfully with preparation, structure, and fairness. Canadian employers are not powerless to address damaging behaviour online, but they must follow a process that respects legal rights and withstands scrutiny.

Toronto (City) v. Toronto Professional Firefighters Association, Local 3888, 2014 CanLII 62879 (ON LA). Retrieved June 25, 2025, from https://canlii.ca/t/gf3f9

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