eCaseNote 2015 No. 01

You Are What You Tweet – Employment Termination for Personal Misconduct

Toronto (City) v Toronto Professional Fire Fighters’ Association, Local 3888 (Bowman Grievance)
Toronto (City) v Toronto Professional Fire Fighters’ Association, Local 3888 (Edwards Grievance)


Social media can be a powerful networking tool, but it can also lead to a blurring of a person’s online self and their everyday self. That is, a person may not realize that what they say online can become attributable to their everyday life and personality as well as their professional life. When a person makes irresponsible and offensive social media posts, those posts can be attributable to their professional lives.

Such was the case of Bowman, a Toronto firefighter who made “sexist, misogynistic, racist” and generally offensive tweets on his Twitter account. While he apparently did not realize that these tweets could be made public, they were made public by the National Post. The firefighter had a picture of himself on his Twitter profile in his firefighter’s uniform, and even identified himself as a Toronto firefighter.

The firefighter was then dismissed on the basis that he violated a number of the employer’s social media policies, and damaged the employer’s reputation. Particularly relevant was the fact that the employer had been initiating a number of diversity initiatives to attract women and minorities to the Toronto Fire Service.

The Bowman Grievance

The firefighter filed a grievance against his employer, which was sent to arbitration. In assessing whether the termination was justified, the arbitrator looked at a test for discharging an employee for off-duty conduct. The arbitrator stated that in order to justify termination, the employer must show that:

  1. The conduct of the employee harms the Company’s reputation or product. In determining whether or not a Company’s reputation is harmed, the arbitrator held that the following test is applicable: “Would a reasonable and fair-minded member of the public, if apprised of all the facts, consider that the grievor’s continued employment would so damage the reputation of the Employer as to render that employment untenable?”;
  2. The employee’s behaviour renders the employee unable to perform his duties satisfactorily;
  3. The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
  4. The employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees;
  5. The employee’s conduct places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

The arbitrator held that any one of the above factors could justify termination, based on the severity of the circumstances. In the circumstances, he upheld the termination.

The Edwards Grievance

Additionally, another case was arbitrated at the same time. In this second case, another firefighter, Edwards, had also tweeted offensive material. However, the employee was reinstated and a three-day unpaid suspension was substituted for termination. The arbitrator upheld the suspension as reasonable. In determining that termination was not appropriate, the arbitrator considered that:

  1. While the employer had policies regarding the use of social media, it had not publicized those policies as well as it might have done given the wide-spread use of such media;
  2. The tweet was not directed at anyone in the workplace;
  3. The tweet appears to have been an isolated incident;
  4. The circumstances were at the low end of the spectrum of unacceptable behaviour;
  5. The tweet was not an attempt to challenge the employer’s efforts at creating a more inclusive and welcoming workplace for women;
  6. The employee had a clean record at the time of the termination;
  7. No employee ever complained about or objected to the tweets; and
  8. Employee apologized a number of times to the employer and his colleagues.

Conclusion

The nature and severity of any off-duty conduct must be taken into account when determining whether or not to terminate an employee for his or her off-duty conduct. As our online world collides with our everyday world, employees need to be cognizant of the effect of their social media presence on their workplaces. As such, these cases provide a useful yardstick to measure how and when an employer can dismiss an employee for their off-duty conduct, particularly on social media.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.