In a time where social media is everywhere and a business’s reputation means everything, employers continue to try and understand how certain posts on social media can justify an employee’s termination in the appropriate circumstances.

In  MacKinnon v Helpline Inc., the Court ruled that an employee’s private, non-confidential, off-duty communications via Facebook and MSN e-mail to a third party reporter did not constitute just cause for that employee’s dismissal.

The reporter had approached the employee and informed her of problems a member of the board of the employer had encountered prior to working for the employer. The employee continued to communicate with the reporter via email and Facebook to discuss allegations of that member’s misconduct. Notably, the employee did not disclose any confidential information and the reporter confirmed that she was not writing a story or conducting any sort of investigative reporting with regards to the matter. This, in combination with the fact that the employee had an unblemished employment record for 16 years with the employer and she was not given an opportunity to correct her behaviour, formed the grounds for the Court to conclude that the termination without reasonable notice was not justified.

As social media continues to develop and people find new ways to communicate, it is important to keep the concept of proportionality in mind when determining whether a Facebook post really does provide just cause for termination. The consequences of a wrong decision can be expensive.

Written with the assistance of Nader Hasan, articling student.

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