Dismissal For Online Conduct: When Can An Employer Hit "Unfollow"?

Bad behaviour online is nothing new, nor is toxic communication in the workplace. However, 2025 has seen an acceleration of toxic communication in both domains and a test of the limits of when off-duty conduct is deemed harmful enough to constitute cause for summary dismissal.

As commonplace as offensive posts have become, it is easy to forget that an employee's digital footprint can have consequences. We recently saw an explosion of interest in an alleged extramarital affair between two employees after video of their intimate embrace at a Coldplay concert spread like wildfire across the internet.¹ There was also the case of a misogynistic tirade by a Philadelphia Eagles fan at an NFL game leading to his dismissal² and in Ontario, a York-region paramedic made comments on social media about the war in Gaza and was dismissed.³

It is not hard to go on any social media platform and find comments or conduct that raises concerns. The question for employers is what to do in these increasingly common situations? When does an employee's onlineconduct (whether off-duty or on-duty) come into the workplace? A recent Ontario Court of Appeal decision provides helpful guidance to employers navigating this difficult issue.

Metrolinx v Amalgamated Transit Union, Local 1587: Off-Duty Online Conduct Can Lead to Termination

Metrolinx v Amalgamated Transit Union, Local 1587 is a recent decision from the Court of Appeal that makes it clear that there are situations when employers can dismiss employees based on their online, off-duty behaviour.⁴

In this case, five bus drivers were dismissed when Metrolinx discovered sexist comments that the drivers had sent to each other about female coworkers in a WhatsApp chat. One of the women mentioned in the chat brought the messages to Metrolinx while it was conducting an unrelated workplace investigation. Metrolinx started a formal investigation into the messages, which were sent from personal accounts and outside of work hours. The female employee did not file a formal complaint and eventually stopped participating in the investigation. The investigation concluded with Metrolinx dismissing all five drivers for just cause on the basis of sexual harassment.

The union filed grievances on behalf of the employees, and the arbitrator agreed with the union's position. The arbitrator held that Metrolinx had no grounds to intrude into the employees' private WhatsApp chat because, in the arbitrator's view, there was no evidence of any negative impact within the workplace.

The Divisional Court overturned the arbitrator's decision on judicial review and sent it back to arbitration. The Court held that the employer had a statutory obligation to investigate potential harassment as soon as it became aware of it, regardless of the lack of formal complaint about the egregious behaviour.

The Union appealed the Divisional Court's decision, but the Court of Appeal dismissed the appeal. Writing for the Court of Appeal, Justice Lauwers made it clear that an employee's off-duty conduct that occurs online will sometimes become an employer's business: "Metrolinx does have authority over the grievors' conduct while they are off duty, subject to the legal norms found in the cases."⁵

The Court of Appeal confirmed that an employer has a duty to investigate "incidents and complaints" of workplace harassment, as per s. 32.0.7 of the Occupational Health & Safety Act.⁶ This means that allegations of employee misconduct that could meet the statutory definition of harassment must be investigated, even if they occur while employees are off-duty. Accordingly, when Metrolinx became aware of the questionable comments being made in the group chat, it was their statutory duty to investigate.

The Millhaven Criteria: How Adjudicators Assess if OnlineConduct is Connected to the Workplace

Employers can be compelled by more than statute to discipline an employee for online conduct. Social media use can be assessed for relevancy to the workplace using the factors set out in the landmark labour arbitration decision of Millhaven Fibres Ltd.⁷ Broadly, speaking, the adjudicator asks whether the social media posts or comments:

• criticize or undermine the employer;
• mention the employer or other employees in a derogatory, harassing or abusive manner;
• are exceptionally harmful to the employer; or
• violate a workplace policy.⁸

The criteria assess if the conduct constitutes misconduct by creating "a real and material connection" to the employer:⁹

1. The conduct of the employee harms the Company's reputation or product;
2. the employee's behavior renders the employee unable to perform their duties satisfactorily;
3. the employee's behavior leads to refusal, reluctance or inability of the other employees to work with them;
4. the employee has been guilty of a serious breach of the Criminal Code and thus rendering the employee's conduct injurious to the general reputation of the Company and its employees;
5. the employee's conduct places difficulty for the Company in properly carrying out its function of efficiently managing its work and efficiently directing it working forces.

An employer needs to prove that at least one of the factors above is at play to successfully connect online conduct to work, and need only prove risk of the factor, rather than actual harm.¹⁰

The Millhaven test is contextual: the type of work, the type of conduct in question, and the employer's line of business will all factor in to determining how strong the connection is between the conduct and the employment context, and in turn, if recourse in the workplace is available.¹¹ For example, employees working in public service or with vulnerable groups (e.g., government employees, teachers, or nurses) may have a higher expectation of behaviour on their online accounts, as their posts have a better chance of harming their employer's reputation.¹² The employer's own conduct could also be a mitigating factor in determining discipline, even if the online conduct is found to be adequately connected and serious.¹³ If the employer fosters an unprofessional, unethical, or generally "anything-goes" workplace, this will be taken into consideration when determining the severity of the employee's behaviour.

These criteria have been applied more liberally in recent cases as social media becomes a bigger and bigger factor in everyday life, and as workplaces and decision-makers have better understood how bad an ill-advised a social media post can be for an employer's business.

Most of the litigation dealing with divisive off-duty conduct arises in the unionized setting.¹⁴ As labour arbitrators and adjudicators have consistently applied the type of contextual analysis used in employment law when assessing just cause for dismissal, outlined in McKinley v BC Tel and echoed in Millhaven, labour law cases remain relevant to non-unionized workplaces, too.¹⁵ Unionized or non-unionized, employers need to know what they can do if disaster strikes online.

How Millhaven has Been Applied to Instances of Online Misbehaviour

Not all instances of online misbehaviour are as clearly linked to the workplace as derogatory chats about female coworkers. Can employers discipline employees when they express offensive views on the internet, unrelated to the office or fellow employees? They can, if a connection can be drawn to the reputational harm prong of the Millhaven analysis.

In YUSA v York University (Balaskas), for example, a York University laboratory technologist, Nikolaos Balaskas, was dismissed for social media activity which contained antisemitic posts. The university relied on their Secretariat Policy on Hate Propaganda, as well as its Policy Concerning Racism to justify the termination.¹⁶

Although the union argued that the antisemitic posts did not satisfy any Millhaven criteria, the arbitrator found that the employee's profile and some of the posts did draw a connection "between his expression on Facebook and his employment with the University, such that his posts [...] inflicted reputational harm" which would justify discipline.¹⁷

This case also points to how important workplace policies are in cases where the actions' connection to the workplace are less direct. Non-compliance with the university's policies was a direct and significant factor in the justified termination. Therefore, in the right circumstances, policies can effectively serve to extend a workplace's reach into personal off-duty social media use as weighed against "actual harm arising from off-duty conduct."¹⁸

In Badder Bus Service Ltd. v. Reavely, a non-union case, the employee was found to be justly dismissed because of how much the employer was implicated in the off-duty behaviour, despite the employer not being directly referenced in the off-duty conduct.¹⁹ The employee, a school bus driver, posed for provocative and explicit photographs that ended up on the internet. One of the photographs showed the complainant engaging in sexual activity in the bus that she drove for the employer, which was parked in her driveway. Students had found the posts and felt uncomfortable about riding the bus to school.

None of the photos were taken during working hours, did not relate to her duties nor was it clear in the photographs who the employee worked for; regardless, the employer was found to have cause to dismiss. Although the Millhaven factors were not directly referenced in the decision, the adjudicator ultimately reasoned along the lines of the factors, deciding that the photographs were prejudicial enough to the employer's business to merit her firing.

In ATU, Local 508 and Halifax (Regional Municipality) (McQuarrie), Re,²⁰ the employee was also a bus driver, this time for the city of Halifax. The city received an anonymous letter alleging racism in Facebook posts created by Halifax Transit employees, including one posted by the employee. The post apparently targeted the North Preston community, which is a predominantly Black neighbourhood in the city. Because the employee had a prior disciplinary record, the employer decided to terminate her employment; they disciplined the other employees who made posts.

The Board decided that there was just cause for discipline, but not for termination. This is because, given the first Millhaven criterion referencing reputational harm, there was adequate connection to the workplace. However, the connection was not so severe as to warrant termination. The reputational harm was deemed not to be critical. The lack of a specific workplace policy for social media conduct was not a barrier to disciplining the employee, but a workplace policy specifically for social media use may have meant different or more severe consequences for the employee.

Employer Takeaways

It is becoming more and more clear that there is no such thing as private conduct online. It is important for employees and employers to understand that Charter protection of freedom of expression doesn't apply to the private workplace, and that freedom of expression doesn't mean that all speech is protected or that there is freedom from consequences.

What the cases and examples above show is that an employer can have legitimate interests in an employee's online conduct, both intentional online conduct (as in the Metrolinx case) and conduct that unintentionally spreads online (as in the example of the Eagles fan). So, what do employers need to know?

1. Employers should assess what factors are at play in determining when your employees' conduct on their personal social media accounts is deserving of discipline. Is your employee posting rude comments on a coworker's feed? Are they posting hateful opinions, but which don't mention the workplace? Different situations will warrant different responses. The Millhaven criteria are less easily applied in cases where the employee does not criticize or implicate their workplace directly, but nevertheless displays unsavoury behaviour. When this sort of thing happens, employers may connect the behaviour to the Millhaven criteria based on reputational damage. The more severe the damage the behaviour could inflict on an employer's reputation, the more likely it is that the employee could be dismissed. Importantly, non-unionized employers may choose to dismiss an employee without cause, should they decide that regardless of a Millhaven analysis, they want the employee gone.
2. Employers should be mindful of their obligations to investigate alleged misconduct. Sometimes, employers have to investigate things that happen online and outside of the workplace. Employers need to know what regulations they are bound by and should keep up to date with developments in the law so that they don't slip up and neglect their legal duties.
3. To maintain reputational control and mitigate risk, employers should prioritize implementing a workplace policy that outlines clearly what expectations are for its employees when using social media. Such policies play a central role in how decisionmakers inform themselves on both the connection of the behaviour to the workplace, and the severity of the discipline appropriate in the circumstance. It is important to put employees on notice that they are subject to discipline if they engage in discriminatory or harassing behaviour online, or behaviour that damages the reputation of the employer or makes the workplace difficult to manage. Providing clarity allows employers to engage in a balancing of interests when these cases arise.

Footnotes

1 Matt Lavietes, "Astronomer CEO resigns after Coldplay 'kiss cam' scandal" in NBC News (accessed August 4, 2025).

2 David K. Li and Janvhi Bhojwani, "Foul-mouthed fan banned from Eagles home games, fired from job after viral tirade against woman" in NBC News (accessed August 4, 2025).

3 Sharif Hassan, "York Region paramedic shouldn't have been fired over Israel comments: union, law experts" in CBC News (Accessed August 7, 2025).

4 Metrolinx v Amalgamated Transit Union, Local 1587, 2025 ONCA 415.

5 Metrolinx v Amalgamated Transit Union, Local 1587, 2025 ONCA 41 at para 32.

6 Occupational Health and Safety Act, RSO 1990, c O.1, s 32.0.7.

7 Millhaven Fibres Ltd v OCAW, Local 9-670, 1967 CarswellOnt 789. While Millhaven is applied in the labour context, the criteria may be persuasive in non-union cases

8 Denis Ellickson and Meg Atkinson, "When Can your Employer 'Unlike' You? Just Cause for Dismissal and Social Media" in The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age (Toronto: Irwin Law, 2013) 259.

9 Ibid at 299; Ottawa-Carleton District School Board v OSSTF, District 25 (Cobb Grievance), 2006 CarswellOnt 8752 at 15.

10 Ellickson supra note 9 at 301.

11 Donald Brown, David Beatty & Adam Beatty, "Off-duty behaviour" in Canadian Labour Arbitration, 5^th ed. (Thomas Reuters, 2024).

12 Ibid.

13 Denis Ellickson and Meg Atkinson, "When Can your Employer 'Unlike' You? Just Cause for Dismissal and Social Media" in The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age (Toronto: Irwin Law, 2013) 259 at 301.

14 Howard A. Levitt, "What Constitutes Inappropriate Internet Use in the Employment Context and under What Circumstances Does Such Use Provide Just Cause for Summary Dismissal? " in Law of Dismissal in Canada, 3^rd ed. (Thomson Reuters, 2025) at Appendix IF: Issues in Focus.

15 McKinley v. BC Tel, 2001 SCC 38 (CanLII), [2001] 2 SCR 161.

16 YUSA and York University (Balaskas), Re, 2018 CarswellOnt 7618.

17 Ibid at 25.

18 Ibid at 22.

19 Badder Bus Service Ltd. v. Reavely, 2000 CarswellNat 3758.

20 ATU, Local 508 v Halifax (Regional Municipality) (2007), 158 LAC (4th) 431, 89 CLAS 41 (NSLA)

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025