In a time where social media is everywhere and a business's
reputation means everything, employers continue to try and
understand how certain posts on social media can justify an
employee's termination in the appropriate circumstances.
In MacKinnon v Helpline Inc., the Court
ruled that an employee's private, non-confidential,
off-duty communications via Facebook and MSN e-mail to a third
party reporter did not constitute just cause for that
The reporter had approached the employee and informed her of
problems a member of the board of the employer had encountered
prior to working for the employer. The employee continued to
communicate with the reporter via email and Facebook to discuss
allegations of that member's misconduct. Notably, the employee
did not disclose any confidential information and the reporter
confirmed that she was not writing a story or conducting any sort
of investigative reporting with regards to the matter. This, in
combination with the fact that the employee had an unblemished
employment record for 16 years with the employer and she was not
given an opportunity to correct her behaviour, formed the grounds
for the Court to conclude that the termination without reasonable
notice was not justified.
As social media continues to develop and people find new ways to
communicate, it is important to keep the concept of proportionality
in mind when determining whether a Facebook post really does
provide just cause for termination. The consequences of a wrong
decision can be expensive.
Written with the assistance of Nader Hasan, articling
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
and other legal staff based in more than 50 cities across Europe,
the United States, Canada, Latin America, Asia, Australia, Africa,
the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).