In the digital era, where the boundaries between personal and professional lives are increasingly porous, social media has become an extension of the workplace when employee expression interferes with an employer’s legitimate interest in protecting their business, workplace culture, and reputation. If an employee’s online conduct interferes with these employer interests, their online conduct can mean they are out of a job.
A social media post shared in one’s personal time can instantly damage an employer’s reputation, raise questions about an employee’s judgment or impartiality, or disrupt workplace relationships. For example:
- A manager posts discriminatory views online, undermining the employer’s DEI efforts.
- An employee shares confidential client information on a private forum.
- A healthcare worker posts videos from inside a patient care facility, breaching privacy policies.
Each of these scenarios can warrant disciplinary action—if the employer can establish a sufficient nexus between the conduct and the workplace. Where does that line exist? Recent case law has delved deeper into the interactions of off-duty online behaviour and the workplace.
When can off-duty conduct become a workplace issue?
First, let’s review the legal test for when off-duty conduct (online or otherwise) can become a workplace issue. Canadian case law continues to affirm a consistent test to determine whether off-duty conduct constitutes misconduct justifying discipline or termination. This test goes all the way back to 1967, and is still applied in this format today – Millhaven Fibres Ltd. (1967), 18 L.A.C. 147, states the legal test when off-duty conduct can be the subject of misconduct findings in the workplace:
- The conduct of the grievor harms the company’s reputation or product;
- The grievor’s behaviour renders the employee unable to perform his duties satisfactorily;
- The grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
- 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; or
- The conduct of the grievor places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
This test has been consistently applied and reaffirmed in cases involving social media, where courts and arbitrators assess whether the employee’s online conduct meets one or more of these criteria.
Important Cases to Know
Business owners and HR leaders need to know when they may be facing a situation of off-duty social media conduct that they need to address in the workplace. Not surprisingly, in the post-pandemic world, there have been an increasing number of such complaints and it is important to know which fact patterns can necessitate a response from an employer. We highlight some of the essential cases to know for dealing with off-duty social media conduct.
In this arbitration decision, a Toronto firefighter was terminated for posting a series of offensive tweets from his personal Twitter account. The tweets, which included sexist, racist, and homophobic content, were made while the firefighter was off-duty but identified him as a member of the Toronto Fire Services. The employer argued that the tweets violated its policies and brought disrepute to the organization. The arbitrator upheld the termination, finding that the firefighter’s conduct had harmed the reputation of the employer and breached the trust inherent in his position.
In this case, the British Columbia Labour Relations Board upheld the termination of two employees who posted “very offensive, insulting and disrespectful comments about supervisors or managers” on Facebook. Although the employees argued that their off-duty conduct was private, the Board found a sufficient connection to the workplace and noted that their posts were visible to co-workers and the public.
A teacher was disciplined after posting inappropriate and profane comments about students and the school environment on Facebook. The arbitrator upheld the suspension, finding that the posts undermined the teacher’s professional responsibilities and the integrity of the educational environment.
Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (Ont. Div. Ct.)
The Ontario Divisional Court addressed the issue of derogatory and sexist comments made by five employees about a female colleague in a private WhatsApp group chat. Although the messages were exchanged on personal devices outside of work hours, they came to light during an unrelated workplace investigation. The employer, Metrolinx, conducted an investigation and subsequently terminated the employees involved for cause. An arbitrator initially ruled that the terminations were unjust, citing privacy concerns and the absence of a formal complaint from the affected employee. However, the Divisional Court overturned this decision, emphasizing that employers have a statutory obligation to investigate workplace harassment under the Ontario Human Rights Code and the Occupational Health and Safety Act, regardless of whether a formal complaint has been filed. The Court held that the private nature of the messages did not shield the employees from disciplinary action, especially when the content created a hostile work environment.
How to Effectively Respond
Employers need to be ready to respond rapidly, lawfully, and effectively when they receive information that off-duty online conduct may be affecting the workplace. First, when faced with concerning off-duty social media activity, employers should ask:
- Does the content harm the employer’s legitimate business interests?
- Is there a direct or indirect connection to the employee’s duties?
- Would a reasonable member of the public associate the content with the employer?
- Has this impacted the workplace environment or co-worker relationships?
If the answer to any of these is “yes,” a further investigation and disciplinary action may be appropriate (see our article later this month on how to investigate off-duty online misconduct!). Primarily, employers must ensure that any investigation is procedurally fair, and that discipline is proportionate to the misconduct.
Social Media Policy Essentials
The number one way to manage off-duty conduct is by making expectations clear in your workplace policies. Employers should update their social media policies as social media apps and use evolve. If you haven’t implemented a social media policy yet, you need to. A robust social media policy:
- Clarifies that posts—even when off-duty—must not violate the employer’s harassment, confidentiality, or conduct policies.
- Warns that conduct damaging to the employer’s reputation may result in discipline.
- Reminds employees that public posts are not private and may be viewed by clients, co-workers, or regulators.
- Provides examples of unacceptable conduct to aid clarity.
A policy, however, is only as strong as its enforcement. Employers should also conduct regular training and create a workplace culture that encourages employees to think before they post.
Employers need to recognize that social media is not separate from the workplace—it is an extension of it. A proactive, thoughtful approach is essential to managing this modern risk. The case law shows that as employers continue to balance off-duty conduct with the employer’s own legitimate interests in maintaining a safe, respectful, and reputable workplace, clear policies, fair investigations, and a consistent investigation and decision-making process, can ensure the right decisions are made.
References:
The City of Toronto (The Employer) and The Toronto Professional Fire Fighters’ Association, Local 3888 (The Association), re: grievance of Matt Bowman, Arbitrator Elaine Newman, hearings at Toronto, May 21, July 11, October 15, 16, 22, 24, 2014. 2014 CanLII 76886 (ON LA). Retrieved from https://www.canlii.org/en/on/onla/doc/2014/2014canlii76886/2014canlii76886.html
Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB). Decision by Allison Matacheskie. Retrieved June 2, 2025, from https://www.canlii.org/en/bc/bclrb/doc/2010/2010canlii62482/2010canlii62482.html
Giuseppe Montana a.k.a. Giuseppi Montana and Joe Montana, et al. v. Minister of National Revenue, et al., 2018 CanLII 58473 (SCC). Retrieved June 2, 2025, from https://www.canlii.org/en/bc/bcla/doc/2018/2018canlii58473/2018canlii58473.html
Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII). Justices Firestone RSJ, Charney and Leiper JJ. Retrieved June 2, 2025, from https://www.canlii.org/en/on/onscdc/doc/2024/2024onsc1900/2024onsc1900.html
