» Legal Crossing the Line
Off-duty postings can result in workplace discipline BY ADRIAN JAKIBCHUK AND MATTHEW BADROV
C
ourts and labour arbitrators have traditionally drawn a line between an employee’s work and private life, declin-
ing to uphold discipline for “off-duty” conduct where there is no clear con- nection to the workplace. However, with the proliferation of online social media and the ease with which objec- tionable online comments can now be linked to a poster’s employer, the line has begun to blur. This, in turn, is forcing employers to
consider disciplining or even terminat- ing employees who post offensive con- tent to protect the legitimate business interests of their organizations. Canadian adjudicators have just begun to set sail in these largely
36 Fitness Business Canada May/June 2013
uncharted waters. But the distinction between a posting that is worthy of discipline and one that is not is becom- ing increasingly clear; it is the extent to which the posting affects — or could affect — the workplace. If there is no connection to or dis-
cernible impact on the workplace, there will be little chance of uphold- ing discipline. In determining this, adjudicators have considered factors such as the nature of the employ- ment relationship, the nature and se- riousness of the employee’s conduct, the extent to which offensive content was publicly available and the impact — or potential impact — of the con- duct on the employer’s business and reputation.
A recent high-profile example In the aftermath of the tragic sui-
cide of B.C. high school student Amanda Todd — who had endured online bullying and harassment — a number of media outlets reported on the related termination of Justin Hutchings, an employee of a retail store in London, Ontario. After hear- ing of Todd’s death, Hutchings, a man with no apparent connection to Todd, provocatively posted to Facebook the comment, “Thank God this b---- is dead.” A Calgary woman who had started
a group to police Facebook comments about the deceased girl came across the offensive posting, and when she clicked on Hutchings’ Facebook pro- file she saw the name of his employer. When she reported the posting to his employer, it terminated his employ- ment purportedly because the post- ing was contrary to the values of the
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