The Toronto Marlies’ new goaltending coach was recently hired, then fired amid uproar over his social media likes.
Days after the Maple Leafs’ AHL affiliate hired Dusty Imoo, the Marlies’ Twitter account posted a statement saying he would not be joining the team after all.
Imoo seems to have been fired not for any comment he made on Twitter, but because of the posts he liked, including some that showed support for the January 6 insurrection in Washington, D.C. Others were transphobic and anti-vax. His account has since been deleted.
After news of his firing broke, many people were surprised to learn that an employee’s off-duty conduct, including social media comments and likes, could lead to a termination.
How morality clauses allow firings for cause
Employment contracts in pro sports and entertainment often have morality clauses that average employment contracts don’t. These clauses allow employers to terminate employees for conduct that reflects badly on the employer.
Even without such clauses, an employee can be fired for cause — that is, without severance pay — if their conduct harms the company’s reputation. The employer may only need to show potential harm to its standing to justify the firing.
READ MORE: What you need to know before you sign a contract — even if your employer asks you to
How to determine if termination for cause is justified
Terminated employees can ask a court to determine if their for-cause termination was justified. Factors a court will consider include whether the employee had a public-facing role, including one that dealt with clients and suppliers, or if they managed others.
The more senior the employee, the higher the standard of conduct that’s usually expected. An employer’s policies are also considered, including any social media policy and human rights, diversity and inclusion policies. Courts will also consider an employee’s length of service and loyalty to the company, as well as the absence of prior discipline.
Imoo may have believed that freedom of speech protected him. But this only protects individuals from government action. It does not prevent a private employer from disciplining an employee for comments made in the digital realm.
READ MORE: Partying on a job site, criticizing mask-wearing: Reasons to fire employees for cause or not?
How severance works in a dismissal for cause
It is not clear whether Imoo was terminated for cause or whether he was given a severance package.
In Ontario, Alberta, and B.C., an employee can be terminated for any lawful reason, as long as they’re provided a proper amount of severance based on factors such as age, length of service and position.
When an employer terminates an employee for cause, however, that employee is not entitled to any severance.
But in many of those cases, the employee’s conduct does not actually rise to the level required to justify a termination without compensation. In those situations, fired workers can pursue full severance through a wrongful dismissal claim.
The employment lawyers at Samfiru Tumarkin LLP have represented countless clients in similar situations, who were fired over a simple mistake, performance issues or for other reasons that do not meet the threshold for severe misconduct.
READ MORE: 5 vital facts about severance pay you probably weren’t aware of
Can liking social media comments get you fired?
All Canadians are entitled to live free from discrimination, and courts are increasingly reluctant to overturn just-cause dismissals resulting from discriminatory, racist, sexist or transphobic comments. But in my experience as an employment lawyer, liking an anti-vax post on Twitter would not usually result in a court agreeing with a just-cause termination.
If a social media user’s profile identifies their employer, the user must exercise caution before posting on a public forum. Employers have a legitimate interest in preserving their reputation.
They may, however, discipline employees too quickly for any potentially controversial comments. If you have faced discipline or termination due to your comments on social media or elsewhere, contact a lawyer, like the employment law team at Samfiru Tumarkin LLP, to learn more about your rights.
Have you been fired because of something you did on social media? Do you need a severance package reviewed by an employment lawyer?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Lluc Cerda is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.