The growth of social media and its integration into our lives
and the workplace continues to evolve. Over the last decade, courts
and arbitrators have consistently held that inappropriate social
media postings may warrant disciplinary action, even if the content
is posted while an employee is off-duty. Employees may face
disciplinary action, up to and including termination, when they
post content on public social media websites that damage the
reputation of the employer and/or its employees.
In MacKinnon v Helpline Inc., 2015 NBQB 159, the
employer terminated an employee for cause. The underlying issue was
the fact that the employee had exchanged emails and
"private" Facebook messages with a local reporter that
were viewed by the employer to be damaging to its reputation and a
breach of confidentiality.
The employer was a not-for-profit corporation operating a
community food bank. The employee had worked for the employer
for sixteen (16) years and was a manager at the time of
While performing her duties at work, the employee met with a
reporter who attended the food bank to write a story on an upcoming
fundraiser. The reporter mentioned to the employee that she had
heard a rumour that one of its Board members had misappropriated
funds while volunteering at a church. The employee was concerned
about this rumour, as the Board member had access to funds at the
food bank. Following this meeting, the employee continued to
communicate with the reporter about the rumour involving the Board
member via email and "private" Facebook messages.
A co-worker advised the Board of the employee's
communication with the reporter. The Board conducted an
investigation. The Board concluded that the employee had engaged in
misconduct. She was terminated for "breach of trust." The
employee filed a wrongful dismissal action.
The employer alleged that the reason for dismissal was that the
Board had lost faith in the employee because of her continued
communication with the reporter about the rumour about one of its
The Court found that the communications between the employee and
the reporter revealed no disclosure of any confidential
information. The emails and private Facebook messages in question,
although offensive and improper, were sent from the employee's
private email account while she was off-duty. They were not
publicly available and as such did not cause any harm or
embarrassment to the employer. There was no evidence that any
communications had negatively affected the employer's
reputation in the community or its relationship with its
The employer's investigation of the matter was also
addressed. Although the employee was assured she would be given an
opportunity to be heard by the Board she was never permitted to
address the allegations against her. In addition, the Board
member in question played a substantial role in the investigation
into the employee's conduct despite the fact that he was at the
heart of the rumour. The Court found that the Board member's
involvement in the investigation, and the actual termination of the
employee, was inappropriate.
The Court concluded that the employer failed to establish that
the employee's off-duty conduct of sending emails and private
messages constituted just cause for termination. The messages were
exchanged while the employee was off-duty through her private email
and Facebook account. The communication was between two persons. It
was not widely disseminated. The employee was awarded 18
months' pay in lieu of notice of termination.
Lesson for Employers
An employee's off-duty conduct on social media will only
warrant disciplinary action where the information is:
widely disseminated; and
damaging to the reputation of the employer and/or its
Generally, the principles of progressive discipline will apply
such that a single incident of an employee posting offence content
on social media will not warrant termination unless the content is
so egregious as to render progressive discipline inappropriate.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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