Update by Erin Brandt, Cofounder

Free speech is a fundamental tenet of Canadian democracy that prevents our government from limiting speech in many situations - most significantly with respect to free press and criticism of our government. But most employers aren't the "state" and can take steps to stop employees from expressing views that hurt their business.

The case of West v Way to Go Traffic Solutions Ltd., 2024 BCCRT 483 highlights the possible consequences when an employee exercises poor judgment in posting about their employer on social media.

Background

Ms. West worked for Way to Go Traffic Solutions Ltd. (“WTG”). WTG terminated Ms. West’s employment for just cause after Ms. West posted harmful comments on social media about WTG and its client.

Ms. West filed a claim with the BC Civil Resolution Tribunal (the “BCCRT”) seeking compensation from WTG. Ms. West claimed that she was wrongfully dismissed from WTG after she was subjected to racist conduct at her job site, sworn at, shouted at, and left alone on the road by her manager endangering her life. Ms. West also claimed that WTG discouraged other flagging companies from hiring her.

Decision

The BCCRT found Ms. West’s story unlikely and accepted WTG’s evidence that Ms. West’s employment was terminated because she made a Facebook post that was inappropriate and harmful to WTG.

The BCCRT summarized the fundamental principles around termination for just cause:

• Just cause is conduct that is seriously incompatible with the employee’s duties, goes to the root of the employment contract and fundamentally strikes at the employment relationship

• The employer bears the burden of proving just cause

• If an employer shows just cause, it may dismiss an employee without notice or pay in lieu of notice

The BCCRT found that when Ms. West publicly criticized and swore about her employer, its client, and its client’s employee, Ms. West prejudiced WTG’s business interests and fundamentally damaged the employment relationship. Making such comments about WTG and its client in public social media posts was seriously incompatible with Ms. West’s duty to her employer. As a result, WTG had just cause to dismiss Ms. West, and she was not entitled to any damages arising from her dismissal from WTG.

Key Take Away for Employees

Whatever an employee’s true feelings about their employer may be, an employee should exercise good judgment and restraint with respect to what they post online about their employer.  

Key Take Away for Employers

Employers have a right to set limits on what is and is not acceptable speech as it relates to the employment relationship, including on issues relating to bullying, harassment, discrimination and the employer’s public reputation. Where an employee’s speech crosses the line, a formal warning, or even termination for just cause may be justified – depending on the severity of the misconduct. Setting clear expectations in workplace policies can help employers address employee misconduct when it occurs.