On October 4, 2019, NBA General Manager of the Houston Rockets, Daryl Morey, shared a picture on twitter which commented on the political protests in Hong Kong. Many people on social media, including Twitter and Facebook asked the Houston Rockets (and even the NBA) to fire Daryl Morey.
If a Toronto employee tweeted something political (for example, Toronto Raptors GM Masai Ujiri tweeting about the impeachment proceedings of Donald Trump), could a Toronto employer fire this employee?
Yes, but not for cause. In other words, the employee can be fired but is entitled to severance.
Employers Can Fire Employees for Any Reason
Generally speaking, employers can dismiss employees for any reason, or no reason at all as long as they provide employees enough notice of termination, or payment in lieu of notice (often called a severance package or severance pay).
The only time an employer is not required to provide severance is when an employee does something so bad that leads to a complete breakdown in the employment relationship. This is often called a termination for cause, or just cause.
Tweeting something unrelated to your job will not likely be considered a basis to terminate an employee for cause. Misconduct justifying just cause requires something that goes to the heart of the employment relationship. Think stealing, fraud, violence.
This Employer Could Not Prove Just Cause for Employee’s Negative Tweets About Work
But what happens when an employee’s tweets disparage the employer? It could lead to a just cause termination, but the tweets have to be quite damaging.
In one case, Kim v. International Triathlon Union (ITU), an employer fired an employee for posting public tweets, Facebook posts, and blogs disparaging work. Here are some of the posts that the employer relied on for dismissing the employee:
“2012 ITU season…DONE. now leave me alone until 2013!!”
“surprisingly fun congress after-party last night. probly only time I’ll see so many Eboard members hungover & lamenting those tequila shots”;
“I wonder if other IF congresses have as much propaganda as ours…”;
“hey ITU, remember this next time I fly off the deep end…‘@Relationship 1O2: If I didn’t care, I wouldn’t get mad.’”
In a blog post, called “taking shit,” the employee wrote about her abusive mother. In the final sentence, the employee talked about her boss, saying, “but now thanks to my current boss, it is back in full force. and as my former colleague used to say, the spirit is broken.”
The court ruled that these public posts were not offensive enough to justify a termination without no severance. The court looked at the entire context of the tweets, including the fact that the employee had a positive employment record, she was not warned about these tweets or ordered to cease and desist.
The judge awarded five months of pay for severance. The employee worked as a Senior Manager for 2 years, was 34 years old, and earned $80,000 a year. This amount of severance is likely in the higher range.
Employer Education:
Employers may have little say about what an employee does on their own time. But when an employee disparages against the employer, there are a variety of methods that an employer can use to handle the situation. This includes having clear communication policies, appropriate discipline procedure, up to and including termination. Terminations for cause will always be difficult to establish, so employers should use this ultimate tool very carefully.
Employee Errors:
Yes, employees can say what they want in a tweet or on Facebook. But employees should know that they can be let go for any reason or no reason at all. So if you want to keep your job, maybe find better, less public ways to vent your frustration.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about online posts on Twitter or Facebook, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.