The employment contract of a “Montreal Impact Academy’s U14” team coach was recently terminated as he made racist comments on his private Facebook page following the defeat of France against Portugal in the Euro 2016 final. In a news release, the Montreal Impact shortly dissociated itself from these comments, considering that they were totally unacceptable and against the fundamental values of the club and of the Academy.
This case is interesting in that it raises the issue of whether an employer can lawfully dismiss an employee having an improper conduct on the Internet. It serves as an accurate example of the challenges and consequences entailed by the increasing use of social networks.
Although no information in this regard was provided, coaches for sports teams are usually employed under fixed term contracts. That being said, the Civil Code of Quebec provides that an employer is allowed to unilaterally terminate at any time an employee’s fixed term contract without a prior written notice of termination or any indemnity in lieu of such notice when the dismissal is justified by a “serious reason”.
In such circumstances, the onus is on the employer to demonstrate that the employee was terminated for serious motives. Recent case law demonstrates that dismissal can be justified when, amongst other factors, comments made online affect the employer’s reputation. For instance, when an employee openly criticizes his work, supervisors or colleagues through his private Facebook page, such a behavior can be considered as a “serious reason” for dismissal.
However, pursuant to the theory of gradation of sanctions, employers must use dismissal as the ultimate disciplinary measure. Before imposing a sanction, employers must also usually provide employees with a notice in order to allow them to modify their conduct. In some situations, courts will not consider an employee’s isolated misconduct as a serious motive justifying dismissal. Moreover, in cases where employers apply their policy about the use of social networks in an inconstant manner, dismissal could be considered too severe.
One thing is certain: legal issues arising from the use of social media are not running out of steam. Thus, the importance for employers to have a properly drafted policy regulating the employee’s use of social networks must be stressed. Such policy should notably remind employees that they are liable for comments made online whether it is in or out of the workplace.
Written with the assistance of Emmanuelle Bollard, summer student.