Free Speech in the Private Sector: an Update
Written by: J. Geoffrey Howard and Glen Stratton
This article follows Glen’s earlier article debunking the myth that the Charter of Rights and Freedoms protects employee free speech outside the public sector (read it here.) Geoff read it and we agreed to do a follow up article for the vast majority of employees with no Charter free speech rights.
It is relatively easy to state the applicable general principles, which are as follows:
Employees are not permitted to engage in political or other “free speech” during working hours or on employer communications channels unless expressly permitted by the employer or related to union organizing. This makes sense, both because employees are paid to work, not sound off, and allowing too much “free speech” can undermine morale and lead to inter-personal conflicts.
On the other hand, employees are generally free to engage in political and other expression as they see fit after and outside of work without fear of discipline unless:
- That expression has a foreseeable material negative impact on the workplace. As we will see below, drawing the line on this exception can be difficult since not every post or speech which angers a co-worker or owner can be grounds for discipline. Often, there are implicit value judgments here i.e. some “free speech” is less free than others; or
- The employee’s communications engage and damage the reputation of the employer. There are two common scenarios here:
- The employee associates the employer with the communication. For example, an ABC employee posting an offensive post on X under the handle “AngryABCguy” with a photo in which he is wearing the ABC logo; or
- Where the employee is a senior manager who can be considered “the face of the company” engages in unpopular expression.
Drawing the line between the general rule and these two important exceptions is similarly challenging.
Recent cases demonstrate how courts and arbitrators are applying these principles in practice and highlight what employers should keep in mind when managing expression – especially online where the potential for a comment to be seen by customers, co-workers, and management is much higher.
When Offensive Online Conduct Crosses the Line
Toronto (City) v. Toronto Professional Fire Fighters’ Assn., Local 3888 (Bowman Grievance), [2014] OLAA No. 507: When Reputational Harm Justifies Termination
A Toronto firefighter, Mr. Matt Bowman, was terminated by the Toronto Professional Firefighters Association after posting highly offensive content on Twitter, albeit outside of working time. His tweets included sexist and explicit comments such as:
“Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.”
“I’d never let a woman kick my ass. If she tried something I’d be like hey! you get your bitch ass back in the kitchen and make me some pie!”
“The way to a woman’s heart is through anal.”
Arbitrator Elaine Newman upheld the termination, finding that the reputational damage to the employer justified dismissal. Key factors in this decision include the extreme nature of the posts, coupled with the employee’s lack of remorse.
This case falls into the first exception: material negative impact on the employer. The employer was concerned that the posts would make it hard to expect that the employee would interact in a respectful manner with female co-workers—already a big challenge in traditionally male dominated fields like firefighting. The case highlights how employees owe an “negative” duty of loyalty to their employer – a duty not to expose the employer to damage to its reputation that extends to public and social media conduct. Even when employees are not explicitly speaking on behalf of the organization, their actions can still reflect on it. Employers may therefore implement reasonable restrictions to free speech in order to protect their own reputation and values. What is troublesome from a free speech perspective is that the posts did not refer or associate the employer and similarly offensive posts are made every day by other employees that just do not come to management’s attention.
Why Context Matters in Disciplinary Decisions
Toronto (City) and IAFF, Local 3888 (Edwards), Re: The Importance of Context and Mitigation
A similar case involving another Toronto firefighter, Mr. Lawaun Edwards, shows how context matters and that there are limits on the approach in the case above, at least in the severity of discipline. Mr. Edwards engaged in a Twitter conversation where he suggested giving a woman a “swat on the back of the head” to “reset [her] brain.” There were two other tweets at issue, one where Mr. Edwards wrote “go get it sweetie” and another where he used derogatory ethnic and racial terminology.
The outcome in this case differed significantly as the arbitrator did not uphold the termination. Instead, the employee received a three-day suspension. The reasons for the arbitrator’s decision included that he had a clean employment record, took full responsibility, and offered a genuine apology.
This decision demonstrates that while employers can regulate an employee’s right to free speech, the disciplinary response should be proportionate. The employee’s unblemished record and sincere apology suggested the incident was isolated rather than part of a broader pattern of misconduct.
The Importance of Policies and Fair Process
Kim v International Triathlon Union, 2014 BCSC 2151: The Progressive Discipline Requirement
In this case, the B.C. Supreme Court found that communications director, Ms. Paula Kim, had been wrongfully dismissed after being terminated for cause for social media posts the employer, Triathlon Union, viewed as unprofessional.
The Triathlon Union took issue with the following posts:
Facebook: “2012 ITU [International Triathlon Union] season… DONE. now leave me alone until 2013!!”
Tweet: “surprisingly fun congress after-party last night. probly [sic] only time I’ll see so many Eboard members hungover & lamenting those tequila shots”
Tweet: “I wonder if other IF congresses have as much propaganda as ours…”; and
Tweet: “hey ITU, remember this next time I fly off the deep end… ‘@Relationship 102: If I didn’t care, I wouldn’t get mad.”
This case, to the surprise of many employment lawyers, swung the other way. The employee was a “face/voice” of her employer. The employee was paid to enhance the employer’s reputation. All of her posts actually related to her work and were clearly disrespectful, insubordinate, and publicly critical of her Board. The Supreme Court found that as she received no warnings and the Triathlon Union had no social media policy, just cause was not established. The Court emphasized the importance of progressive discipline, especially when there are no policy guidelines defining what an employee can and cannot do on social media, or what constitutes unprofessional conduct. That being said, the Court implied that some lesser form of discipline was warranted (for example, a 2-week suspension). And, of course, the employer could have terminated on a “without cause” basis for this behaviour.
The court’s emphasis on progressive discipline is a good reminder for employers concerned about employee communications to consider sanctions other than termination. Employers need to balance employee rights with operational needs and promoting a productive and inclusive workplace.
The Hydro One Employee
Many readers may recall the case of the Ontario Hydro One (the public electricity network) employee, Shawn Simoes, who, while standing outside the stadium after a soccer match, defended horrible sexist comment his friend made to a female newscaster. Mr. Simoes referred to his friend’s comment as “fucking hilarious” — on video in a clip that immediately went viral. He was quickly outed as a Hydro One employee and very publicly fired. What few people know is that months later, he won his grievance arbitration against the employer. Apparently, the key to winning reinstatement was his remorse and efforts at reparations.
Key Takeaways
Freedom of expression inside the workplace during working hours is generally not permitted, unless tolerated or allowed by the employer. For offensive expression outside working hours and workplace channels, employers can discipline for employee speech in some situations to protect legitimate business interests. A grey area exists around expression that does not, on its face, directly relate to the employer. However, employers must also ensure any discipline is reasonable, proportionate, and procedurally fair.
For Employers:
- Establish a clear social media and personal speech policy and ensure employees are aware of it;
- Document policy violations and provide clear warnings or other discipline early;
- Consider the employee’s history, role, and response to the incident after an incident of offensive speech;
- Ensure disciplinary response is proportional to both the severity of the breach and extent of any remorse;
- Try to strike a balance between concerns of reputational damage and calls for firing by co-workers and external critics with the fundamental right in a democracy to free speech, which our courts have repeatedly said must include the right to say things that many or most would find offensive or dead wrong.
For Employees:
- Be mindful of how your online activity may reflect on the employer’s reputation, values, or brand. Do not include anything that would link you to your employer in your public posts and comments;
- Assume nothing posted online is truly “private” – privacy settings are not foolproof and don’t underestimate the power of a screenshot but do use privacy settings to limit access to your personal views, particularly any your employer may not appreciate!;
- Take particular care and attention with controversial topics. When in doubt, review your employer’s social media policy and err on the side of caution
The workplace remains a unique environment where expression rights must be balanced against operational needs, safety obligations, and the employment relationship itself. These cases demonstrate that while courts and arbitrators will protect employee rights, they will also uphold an employer’s right to protect its reputation, provided the employer acts fairly and proportionately.
If you want more information on this topic, you can contact us at:
Geoffrey Howard: ghoward@howardlaw.ca
604 424-9686
