When can an employer discipline an employee for politically charged comments?
By John Hyde
Constitution does not grant Canadians unfettered right to free speech
By John Hyde
EDITOR’S NOTE: ‘Legal steps & missteps: Addressing common workplace concerns’ is a weekly Talent Canada series, in partnership with John Hyde of Hyde HR Law in Toronto. This series takes a deeper look at issues in which organizations can be proactive to prevent legal issues and highlight where common errors occur.
With online vitriol, cancel culture and the level of cultural polarity never so acute, many employees have recently suffered the consequences of sharing their politically charged comments online.
This has been against a backdrop in which organizations face increasing public scrutiny and even vilification for employing those with known controversial beliefs.
Despite these increased tensions, employment law continues to be governed by well-established principles. Employers who base their human resources strategy on the whims of the Twitter mob risk exposing themselves to costly legal missteps.
Limits of free speech
Contrary to what many Canadians believe, our constitution does not grant them an unfettered right to free speech.
In the workplace, employees have no right to engage in speech that promotes hatred, violence, and/or discrimination, and such conduct in the workplace is grounds for discipline up to and including termination.
Indeed, employers have duties under workplace legislation to address such behaviour — looking the other way can be a costly mistake.
But what about speech that is not obviously hateful or discriminatory, yet upsets others? Employers should consider the context of the comments. Employers are within their rights to scrutinize comments cloaked as merely “political,” yet clearly inappropriate. An employer who knowingly permits such comments risks creating a poisoned workplace.
Furthermore, employees have no right to defame anyone while at work. Doing so creates risk to an organization, which can be held responsible for the employee’s comments. Such conduct therefore can be grounds for discipline.
For more ambiguous comments, employers without clear policies in place risk becoming the arbiters of political expressions on a case-by-case basis.
That is why employers should consider outlining their core values, beliefs, and policies within a written employee handbook that serves as a legal and branding guidepost for the organization.
Crucially, it apprises employees of the values of the organization, and the consequences of engaging in conduct that is antithetical to those values. Employees should be asked to sign an acknowledgement stating that they have received, read, and understood the employee handbook.
An employee who then engages in behaviour contrary to the organization’s core values and beliefs can be disciplined with reference to the handbook.
Forum of the comments
Nowadays, the comments which get employees in trouble typically occur on social media.
Oftentimes, employers only become alerted to such comments after an aggrieved member of the public tags the company on social media and demands action. The question then becomes, what rights does an employer have to police an employee’s “off-duty” behaviour?
Fortunately for employers, employees do not have carte blanche to post comments on their personal social media pages, which may cause damage to their employer’s reputation, economic interests and/or relationships with clients. This is particularly the case for employees who publicly hold themselves out as members of the organization on social media and/or have a public persona that inextricably links them to the organization.
As a few recent examples have shown us, licensed medical professionals have publicly posted their disdain for government restrictions related to COVID-19 and disagreed with the dominant medical view as it pertains to the virus.
As members of the health profession, their comments are obviously contrary to that of their employers and, undermine the organization in the view of the public. As a result, their employers would be well-justified to discipline them.
Nature of discipline
Subject to specific rules for unionized and federally regulated workplaces, employers in Canada can terminate employees without cause for any non-discriminatory reason, as long as they provide them with adequate notice.
In most instances, an employee who makes ill-advised comments on social media, short of those which are obviously incendiary, would be let go “without cause.”
The organization would then release a short public statement denouncing the conduct to rehabilitate its brand, and swiftly move on.
At the beckoning of the Twitter mob, some employers may feel compelled to terminate an employee “with cause” and, not provide them with any notice whatsoever. While this may immediately result in many social media “likes,” it can be a costly legal misstep for employers.
Unless the comments were clearly contrary to workplace legislation and/or the express terms of the employment relationship, or the comments followed recent warnings, a termination “with cause” may not be legally justifiable.
In some instances, such missteps can result in additional damages granted to the employee in a wrongful dismissal action and, lead to a lengthy, expensive and protracted legal battle.
Of course, if the employee’s conduct is sufficiently egregious, employers should not shy away from disciplining employees appropriately, including terminating them with cause.
This area of employment law continues to evolve with social norms and the proliferation of social media. It is highly complex, fact-driven, and should be reviewed with experienced employment law counsel.
John Hyde advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.