Special to The Globe and Mail
Can your private texts or instant messages with co-workers cost you your job? What about refusing to delete a social media post that your employer disagrees with or objects to?
Two recent court decisions should serve as blunt reminders to Canadian workers that freedom of speech does not guarantee any right to freedom from workplace consequences.
In the first case, the Ontario Court of Appeal recently upheld the termination of five Metrolinx employees who participated in a private WhatsApp group chat on their personal phones. During their exchange, they made degrading comments about a female coworker, suggesting that she performed sexual favours to advance her career. The messages were sent outside working hours, on personal devices and were intended to remain confidential within the group.
Those expectations of privacy quickly collapsed when someone leaked the messages to the woman who was targeted. Although she informed management, she made it clear that she did not wish to file a formal complaint. Nonetheless, Metrolinx launched an investigation and ultimately terminated all five employees for sexual harassment.
The employees grieved their dismissals through their union. A labour arbitrator initially found that they should be reinstated because their WhatsApp messages were intended to be private and occurred on their own time, away from work, placing them outside Metrolinx’s disciplinary authority. However, that decision was overturned.
The Court of Appeal ruled that the content and impact of the WhatsApp messages mattered far more than their intended privacy. By targeting a coworker and undermining her dignity, the employees nonetheless engaged in conduct that constituted sexual harassment.
Once an employer becomes aware of conduct that could reasonably amount to harassment, it is legally obligated to investigate and respond. Importantly, this duty extends to investigating potential incidents of workplace harassment, even in the absence of an actual complaint.
The decision confirms that private group chats among coworkers are not beyond an employer’s scrutiny. Where their content creates or contributes to a poisoned work environment, employers are required to intervene, which may lead to discipline and, where appropriate, termination.
The second case arose from a dismissal at a grocery store chain after an employee posted critical comments about his employer on a social media platform used by many of its clients, comparing the company to a communist regime. When management instructed him to remove the post, he refused and was then fired.
The employee argued that his off‑duty comments were just his personal opinions and filed a complaint with a labour relations tribunal. His argument was rejected and the dismissal was also recently upheld by a judge, on a review.
Again, the focus was not on where or when the comments were made, but on their effect. Employers are entitled to protect their legitimate business interests, including their reputation. Where an employee’s online commentary undermines those interests, even if unintentional, employers may issue reasonable orders to limit the damage – and then take disciplinary action if their orders are refused or ignored.
Fortunately, these decisions do not stand for the proposition that every ill-considered message or online grievance justifies immediate dismissal. Workplace punishment must be proportionate to the harm alleged, or risk being overturned.
Employers must consider contextual factors such as the seriousness of the conduct, whether it was repeated, the employee’s role and seniority, any prior disciplinary history and whether a lesser form of punishment is more appropriate. Where employers overreach or rush to judgment, courts will not hesitate to award damages for wrongful dismissal.
Moreover, despite the broad latitude afforded to employers to regulate the conduct of workers that occurs away from their premises, there are limited but important exceptions where workers’ communications are legally protected from discipline. Most notably, employees are shielded from any form of reprisal or retaliation when they are attempting to exercise statutory rights, such as those that exist under human rights legislation, employment standards’ statutes or occupational health and safety codes.
For instance, if a worker publicly or privately raises concerns about unsafe working conditions, unpaid wages or human rights violations and does so in good faith, even if his or her perceived concerns are untrue, an employer is prohibited from disciplining or dismissing that employee. In some cases, employers may even be required to reinstate workers fired in reprisal, along with back pay.
Taken together, these cases draw a clear line. The takeaway is not that workers should self-censor every private or online remark. Rather, when communications cross into harassment, undermine workplace dignity or harm an employer’s legitimate interests, workers become accountable to their employers and co-workers for their actions. In those moments, the law gives little deference to claims of privacy or free expression, treating the conduct instead as workplace behaviour – and permitting employers to respond accordingly.
Daniel A. Lublin is a founding partner at Whitten & Lublin, representing clients in workplace legal disputes. He can be reached at [email protected].
