The employment contract of a "Montreal Impact Academy's
U14" team coach was recently terminated as he made racist
comments on his private Facebook page following the defeat of
France against Portugal in the Euro 2016 final. In a news release,
the Montreal Impact shortly dissociated itself from these comments,
considering that they were totally unacceptable and against the
fundamental values of the club and of the Academy.
This case is interesting in that it raises the issue of whether
an employer can lawfully dismiss an employee having an improper
conduct on the Internet. It serves as an accurate example of the
challenges and consequences entailed by the increasing use of
Although no information in this regard was provided, coaches for
sports teams are usually employed under fixed term contracts. That
being said, the Civil Code of Quebec provides that an
employer is allowed to unilaterally terminate at any time an
employee's fixed term contract without a prior written notice
of termination or any indemnity in lieu of such notice when the
dismissal is justified by a "serious reason".
In such circumstances, the onus is on the employer to
demonstrate that the employee was terminated for serious motives.
Recent case law demonstrates that dismissal can be justified when,
amongst other factors, comments made online affect the
employer's reputation. For instance, when an employee openly
criticizes his work, supervisors or colleagues through his private
Facebook page, such a behavior can be considered as a "serious
reason" for dismissal.
However, pursuant to the theory of gradation of sanctions,
employers must use dismissal as the ultimate disciplinary measure.
Before imposing a sanction, employers must also usually provide
employees with a notice in order to allow them to modify their
conduct. In some situations, courts will not consider an
employee's isolated misconduct as a serious motive justifying
dismissal. Moreover, in cases where employers apply their policy
about the use of social networks in an inconstant manner, dismissal
could be considered too severe.
One thing is certain: legal issues arising from the use of
social media are not running out of steam. Thus, the importance for
employers to have a properly drafted policy regulating the
employee's use of social networks must be stressed. Such policy
should notably remind employees that they are liable for comments
made online whether it is in or out of the workplace.
Written with the assistance of Emmanuelle Bollard,
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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.
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