It’s safe to say that, at this point, social media is a critical part of many Canadians’ lives. According to We Are Social’s 2023 report, 85.7 per cent of Canadians actively use social media.
At the same time, we’ve all heard stories (whether from people we know or things we’ve read online) about individuals losing their jobs over controversial or salacious social media activity. For example, an employer may take issue with an employee’s general presence across their social media channels or even over a single post. So, let’s talk about social media and job loss: can you be fired for what you post on social media?
The Employment Standards Act, Social Media, and Job Loss
Ultimately, whether an employer is entitled to fire an employee for posts they made on social media will depend on the specific circumstances, including the content of the social media posts and any relevant policies or agreements you’ve made with your employer.
However, we can glean some general insight into social media and job loss by reviewing the relevant provisions of the Employment Standards Act, 2000, SO 2000, c 41, and other relevant legal principles.
Termination under the Employment Standards Act
Under the Employment Standards Act, 2000, SO 2000, c 41, Ontario employers are entitled to fire employees for any reason, provided that they follow the appropriate steps. In these cases, employers are not required to specify why they are firing the employee – meaning that your employer could terminate you without justifying the reason.
As a refresher, an employer can generally fire an employee if they do the following:
- Provide the employee with written notice of the termination and waits until the notice period has expired; or
- Notifies the employee of their termination without written notice (or by providing less notice than is required) and pays termination pay to the employee.
The amount of entitlement to notice or termination pay will depend on the employee’s length of tenure with the company. For further information, see the Government of Ontario’s chart specifying the amount of notice required based on an employee’s period of employment.
Termination with Cause in Ontario
In more limited circumstances, Ontario employers can fire an employee “with cause.” In these cases, your employer must prove that you have engaged in misconduct incompatible with the employment relationship’s fundamental terms. As a hypothetical example, an employer might be able to fire an employee with cause if that employee signed a confidentiality agreement and chose to post confidential business information on their social media account. However, remember that firing an employee with cause is typically reserved for extreme cases and can be difficult for employers to prove.
But what happens when an employer has grounds to fire an employee with cause? In those cases, the employer can terminate that employee’s employment without notice (or termination pay).
Conclusions on the Employment Standards Act, Social Media, and Job Loss
Considering the above information, your employer could hypothetically terminate your employment for nearly anything you post on social media. For example, if you made posts on social media supporting the Toronto Maple Leafs when your employer is a Montreal Canadiens fan, they could terminate your employment (so long as they provided you with the proper notice or termination pay). And, in very limited circumstances, your employer may be entitled to fire you with cause if you post something extremely inflammatory on social media.
But what about situations where you may have grounds to fight back? We’ll get into those below.
Social Media and Job Loss: Where You May Have a Claim
While employers can fire employees without cause, assuming they follow the Employment Standards Act, 2000, SO 2000, c 41 requirements, there are some situations where a terminated employee could bring an action against their former employer.
Social Media and Human Rights Claims
Under Ontario’s Human Rights Code, R.S.O. 1990, c. H.19, discriminating against an individual based on several protected grounds – including race, citizenship, ethnic origin, gender identity, or faith – is strictly prohibited. This protection extends to relationships between employers and employees.
So, for example, if you were to post about a religious holiday you celebrate on social media and believed you were terminated based on your employer’s discrimination against your expressions of faith on social media, you may be entitled to pursue a claim under the Human Rights Code.
Social Media and Reprisal
Ontario employees are also protected against “reprisal” for attempting to exercise their rights under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. or the Employment Standards Act, 2000. While the circumstances of each case are unique and fact-dependent, there may be circumstances wherein an employee may be protected against punishment for social media posts relating to workplace concerns or “whistleblowing.” For further information, speak with an experienced employment lawyer for guidance.
Tips for Social Media Users
Each situation is different, and it’s nearly impossible to determine when and why an employer will terminate an employee based on their social media usage. To reduce your risk of repercussions for your social media activity, consider the following tips:
- Review your employer’s social media policy (if applicable) and other relevant policies: familiarize yourself with any company policies relating to social media usage and ensure you are complying. Consider whether other policies, such as confidentiality, may impact what you post on social media.
- Think carefully before posting on social media: think critically about your posts and the content you share on social media. Consider, for example, how others might perceive the content. When in doubt, don’t post.
- Do not post sensitive or confidential employer information: never disclose confidential or sensitive information about your employer or coworkers on social media.
- Check your privacy settings: take stock of your social media privacy settings to control who can see your posts to ensure you’re only sharing with people you want to share with.
Contact Toronto Employment Lawyer Paulette Haynes For Guidance On Workplace Social Media Policy And Termination
Losing your job is very stressful. Paulette Haynes and her team at Haynes Law Firm in Toronto help terminated employees assert their rights and remedies owned. Paulette Haynes and her team will advise and guide you through the process to ensure you are properly compensated. If you would like to schedule a consultation, please complete our contact form or call 416-593-2731.