News Off-Duty Conduct
Legal rights for employees posting about the Israel-Hamas war: ‘Some off-duty conduct can result in discipline or dismissal’

By Rosa Saba

As the Israel-Hamas war enters its second month, people in Canada and around the world are taking to the streets and social media to express their views on the conflict.

For some people speaking up has resulted in job loss as the division deepens, with corporations and organizations making statements of their own that may contradict their employees’ opinions.

Here’s what you should know about your legal rights as an employee if you’re disciplined or dismissed from your job after you voiced your opinions about the Israel-Hamas war.

Layoffs vs. terminations

“The default is that what you do on your own time is your own business. But it has always been the case that some off-duty conduct can result in discipline or dismissal. That’s nothing new,” said employment lawyer Stuart Rudner.

“In the world of social media, of course, we’re seeing that applied more and more.”

Other than certain relatively small groups of workers — like unionized workers, who make up less than a third of employees in Canada — most Canadians can be let go at any time and for any reason, as long as they’re given notice and/or severance, said Rudner.

This is also known as termination without cause, he explained, and you likely don’t have legal recourse to fight it unless the reason for the termination falls under human rights legislation.

Protected categories

Protected categories include sexual orientation, disability and religion, said Rudner, but usually not political belief (except in some provinces, such as British Columbia). Whether something falls under one or more protected categories isn’t cut and dried, though, he added.

Termination with cause, on the other hand, means the employer is dismissing you because you have somehow violated the terms of the employment relationship, said Rudner, and it means you’re not entitled to severance or notice.

Cause for termination has a very high threshold, said Lindsay Gluck, a partner at TurnpenneyMilne LLP, and determining whether someone’s off-duty conduct is cause for discipline is often not black or white.

In some cases it’s clear, like if the employee has posted Islamophobic or antisemitic views, she said. In other cases, for instance if the employee is expressing their political opinion, it’s more of a grey area.

Employees terminated for cause may have a legal case against their employer if they believe they were unjustly dismissed, Rudner said.

Cause for termination or discipline

If your conduct off duty or at work impacts the employer’s reputation or creates a situation where the employer can no longer work with you, or other people are unwilling to work with you, “that’s when you can get into just cause for discipline or dismissal,” said Rudner.

Many employers have social media policies, but they’re usually pretty vague, noted Rudner, meaning it isn’t always clear if you’re violating the policy when you post.

Stuart Rudner is the founder of Rudner Law and the author of You’re Fired: Just Cause for Dismissal in Canada.

“There are certainly shades of grey” when it comes to what conduct is grounds for dismissal or discipline, and what isn’t, said Rudner.

Employees should review their workplace social media policies, which their employer should also distribute, noted Gluck.

Even if an employer does not have a social media policy, an employee can still face consequences for their posts, if the post has a real and material connection to the workplace, she said, including harming the employer’s reputation, or making other employees unwilling or unable to work with them.

The degree to which an employer is keeping an eye on things like social media posts will likely depend on the employee’s position within the organization and how public- or client-facing they are, said Rudner.

“If the question becomes, ‘Is there just cause for dismissal?’ … that’s when the context really becomes important.”

Company versus employee statements

Another complicating factor is the fact that some companies and organizations are making public statements themselves about the Israel-Hamas war. An employee taking a strong public stance that opposes their employers’ stance could affect the working relationship or the employer’s reputation, said Rudner.

“If you’re working for a company that had not put out a statement … then it would be harder for them to say that this is impacting the employment relationship.”

What to do if you lose your job

If you have been terminated for cause because of your social media posts or public statements about the Israel-Hamas war, Rudner recommends seeing an employment lawyer to determine whether you might have a legal case. When you do that, “don’t hide anything from your lawyer,” he added, whether it’s social media posts, company policies that might be relevant,or previous disciplinary action you’ve faced.

Gluck agreed that anyone who’s been terminated for cause should seek a legal opinion. In some cases, a lawyer may be able to help you negotiate a severance package if the employer’s cause for termination isn’t legally supportable, she said.

Because of the nature of this specific conflict, Gluck said it won’t be surprising to see terminated employees disputing the legality of their termination, arguing that the conduct they were terminated for was an expression of their personal identity, which is protected by human rights legislation.

“Whether those arguments would ultimately be successful remains to be seen,” she added.

Use caution

If you’re concerned about whether speaking up might affect your employment, Rudner advised exercising caution and respect.

“You can always express your views while being respectful,” he said. Often, people misunderstand the notion of free speech, he added, and think they can’t lose their job for anything they say online, which is not the case.

Even if your social media is private, your employer can still learn about your posts, such as through a colleague, said Rudner.

He also advised employers to be cautious.

“When employers act hastily and then terminate someone’s employment without thinking it through, that’s when they often expose themselves to liability.”