“Last November, Bowman tweeted a seven-year-old line from The Office: “Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.”
This is one of the Tweets that the story claims led to the termination of a Toronto Firefighter this week. There’s others, some of which no doubt are more offensive. So we don’t know all the facts in this case. For example, we don’t know if this Tweeting was done while on duty, or during non-working time.
For my employment law students, think about this question:
Should an employer be permitted to terminate an employee for Tweeting sexist quotes from sitcoms on their personal Twitter accounts?
The law in this area is still developing. Let’s assume that the Tweeting is occurring during off hours, that the employees are sitting on their couch at home Tweeting this and that. Somehow the employer learns of the Tweets (perhaps a manager ‘follows’ the employee, or the Tweet is passed on to management in some other way). The employer takes exception to the content of the Tweet(s), and decides to terminate the employee.
A Nonunion, Private Sector Employee is Probably Screwed
Start with a nonunion employee employed in the private sector. That employee is probably screwed, because in a nonunion workplace (and absent a written contract clause requiring the employer to have a good reason to fire an employee, which hardly ever exists), an employer doesn’t need any reason to fire someone. There is no free standing ‘freedom of expression’ that applies to the employment relationship, at least in the private sector.
I’m always amazed at how people don’t get this point, so I’ll repeat it. If you are nonunion, your employer can fire you for any reason, or no reason at all. There are some statutory exceptions. If your social media comments are related to religion, for example, or to some other ground protected in human rights legislation, then an employer may be prohibited from punishing the employee by those laws. The Labour Relations Act would prohibit an employer from firing an employee for posting comments in support of a union. But those statutes wouldn’t apply to sexist comments made on a Twitter account. If employees fired for social media comments are nonunion, and therefore governed by the Common Law model of employment law, their only argument would be that they are entitled to notice before their termination kicks in.
Firefighters are in a different situation. They are both unionized and public sector employees. That gives them two arguments a nonunion, private sector employee would not have.
Does the Charter Protect The Firefighters?
The first is that they work for a public sector employer, and therefore, the Charter of Rights and Freedoms applies to their employment relationship. A government must respect their employees’ freedom of expression, subject to reasonable limits. Therefore, the firefighters could argue that a workplace rule that prohibits them from Tweeting during their free time violates Section 2(b) of the Charter, which guarantees that the government will not unreasonably impede freedom of expression.
If Tweeting is ‘expression’, and I suspect it is, then the employer would need to persuade an arbitrator that a rule banning sexist, off duty social media comments is justified under Section 1 of the Charter as a a reasonable restriction necessary to protect some overriding public interest. Do you think an arbitrator/court would accept argument? Note that a private sector employee could not make this Charter argument, because the Charter does not apply to private sector employment contracts. [You can read my Beginners' Guide to the Charter and the Law of Work, if this stuff interests you]
Do the Tweets Constitute Just Cause for Termination?
Secondly, the firefighters are unionized, and governed by a collective agreement that I presume includes a clause requiring the employer to have “just cause” to dismiss them. Unionized employers usually need to have a reason to fire an employee, unlike the nonunion employer. There’s a growing body of labour arbitration jurisprudence dealing with employer discipline for social media commentary. Most of this law deals with comments that are directly related to work: criticism of managers, bullying of coworkers, etc. I haven’t seen a case dealing with non-work related comments, like those made by the firefighters, though there may be some by now. This is similar to the OHL ref who was disciplined for making sexist jokes about women in Sault Ste. Marie last year.
The arbitration test in unionized workplaces is essentially this: An employee is free to do whatever he likes during his nonworking time, and his social media comments are none of the employer’s business. However, there’s an exception. If the comments pose a threat to the employer’s business interests, then they become the employer’s business, opening up the employee to the threat of discipline or discharge.
Therefore, presuming the firefighter’s union files a grievance in this case, the employer will need to convince an arbitrator that the employees’ Twitter posts posed a direct threat to the employer’s interests. A fire department is not concerned about threats to profit. But it would be concerned about threats to its public image. That is what the employer would argue was harmed by sexist employee Tweets. An arbitrator would also consider other factors, including: the extent to which the employer has a clear, expressed, and uniformly applied social media policy, and the employees’ seniority and prior disciplinary records.
Questions for Discussion
Do you think the Tweets in question were sufficiently serious to pose a threat to the employer’s interests in this case, thus justifying termination?
Do you think that Canadian governments should enact legislation that defines and protects the rights of employees to engage in personal expression outside of the workplace? What would such a law say?
Do you agree with the employer’s decision to terminate the employees in this case?