Published By: THE GLOBE AND MAIL

In the aftermath of the horrific events last weekend in Israel, a wave of Canadians have turned to social media to express their personal opinions. Regrettably, some of those posts have crossed the line. For instance, an Air Canada pilot made headlines for reportedly posting a video on social media of himself while wearing his uniform, featuring signs praising Hitler and depicting an Israeli flag dumped in a garbage can, along with several obscene captions. Air Canada acted swiftly in firing the pilot, unequivocally denouncing his actions as unacceptable and promoting violence.

There are also reports of senior public servants, CUPE union leaders and politicians posting anti-Israel sentiments on social media, even as the majority of politicians, including Prime Minister Justin Trudeau, have condemned the attacks on Israel as terrorism. As the conflict escalates, so too will online rhetoric and vitriol.

This all begs the question of whether your employer has any right to discipline or dismiss you because of your social media posts about the current war in Israel. The answer is unequivocally yes – but with a few caveats.

Canadians are given the right to freely express their personal views, political preferences or ideologies, whether privately or in public. However, the right to free speech is not absolute. Hate speech is not protected by the Canadian Charter of Rights and Freedoms, and neither is inciting or encouraging violence – both of which are also prohibited by Canada’s Criminal Code.

Furthermore, while Canadians have the right to express their views about the current conflict in Israel without fear of government intervention, employment laws operate differently. In other words, freedom of appropriate expression does not shield you from workplace consequences when your online behaviour is deemed hateful, racist or supportive of terrorism.

Human rights statutes compel employers to take steps to provide workplaces free from harassment and discrimination, which extends to ensuring the actions of their employees do not create or even potentially create a poisoned workplace for other employees or customers. While holding certain beliefs or expressing them privately does not automatically trigger an employer’s duty to act, where workers make offensive or derogatory remarks in public or express support for or “re-post” racist statements or videos of others, employers can be held legally responsible for failing to take steps to quickly remedy the situation.

In these cases, employers will likely have just cause to terminate workers, including unionized ones, for serious misconduct (with no severance). Racist, offensive or derogatory remarks, even if made outside of the workplace and on personal social media profiles, can be sufficiently serious to render a worker’s employment incompatible with an employer’s best interests and justify termination without severance. This is especially so where social media posts can be seen by other employees or by clients who may no longer wish to work alongside or do business with a company that does not take swift action to distance itself from an employee who disseminates or promotes hatred and violence.

Most people who will express their views about the current conflict online are sensible enough to do so respectfully or at least in a manner that is not clearly hateful, derogatory or racist. Unfortunately, even subtle or indirect forms of anti-Semitism or bigotry can be harmful. This is where employment laws become trickier.

Normally, any employer can dismiss any non-unionized employee for any reason whatsoever, as long as a proper severance package is provided. Therefore, employers who disagree with public statements made by their employees, even if those statements are not clearly inappropriate, are within their rights to discipline or dismiss them by providing severance.

However, there is one big exception. Human rights legislation throughout the country prohibits differential treatment (for example, any form of punishment) in the workplace based on possessing personal traits such as ancestry, race, citizenship, ethnic origin and place of origin. Therefore, an employer could violate human rights legislation for penalizing an employee who has publicly supported or criticized a country or its people, but only if that individual’s personal characteristics align with the intended protection of human rights legislation. Simply claiming association with or support for a religious group or ancestry is not sufficient to receive protection under human rights legislation. A protected ground is based on an identifiable personal trait that someone has or a group they genuinely identify as belonging to.

The reality is that many Canadians will be divided about the current escalation of violence overseas. People have the right to their personal views, even if they are prejudiced, without fear of losing their jobs. However, once those sentiments are posted online, for all to see and share, their opinions can become subject to their employers and co-workers’ scrutiny. In these situations, workers who cause harm or the potential for harm to other employees or their employer’s business interests should not expect that there are workplace laws to shield them from the consequences of their behaviour.

Daniel A. Lublin is a partner at Whitten & Lublin, representing clients in workplace legal disputes. He can be reached at [email protected].