Can an employer fire you for expressing your opinions on the Hamas-Israel conflict?
Does a Canadian employer, such as Moxies, have the right to discipline or fire you for your on or off-duty conduct and social media posts related to the current Hamas-Israel conflict?
Recent Israel-Hamas Workplace Incidences
There have been a number of workplace incidences in the news recently where politics have entered the workplace and generated controversy, namely:
- The firing of Moxies employees filmed outside the restaurant, cheering on a passing protest and National March for Gaza on October 21 in downtown Toronto.
- "An Air Canada pilot pilot was fired for reportedly posting a slew of now-deleted antisemitic images on social media including allegedly featuring signs praising Hitler while wearing his uniform and calling Israel a "terrorist state" and that it should "burn in hell," according to the New York Post. He was also allegedly holding a sign that read, "keep the world clean." Next to the words was an image of a person throwing out the Israeli flag, according to a screenshot of the post.
- Other reports of senior public servants, union leaders, university faculty, and politicians crossing the line with their postings of sentiments on social media.
Can your employer discipline or fire you for expressing your opinions on the Hamas-Israel conflict?
The answer, as always is, it depends.
Both Air Canada and Moxies swiftly terminated the employees in question and made public statements denouncing their actions.
I have to assume that both employers sought prior legal advice and proceeded with termination. Here's probably why they went ahead:
The Moxies employees were captured on film, on duty, on their employer's premises and wearing their uniforms while cheering on the National March for Gaza. Even if they were off-duty or out of uniform, a reasonable person would have concluded that they were associated with and represented that business and brand.
Moxies undoubtedly took the position that when their employees are on Moxies' watch and payroll, Moxies had the right to expect employees not to associate their business with support for any movement or march.
Although it's not clear if the Air Canada pilot was on duty, he was allegedly wearing his uniform in at least one of his posts. Let's assume he was off-duty for the purposes of this article.
Off-Duty Conduct. Can an employer intervene in hate speech?
Generally, if it’s considered off-duty conduct, an employer cannot discipline or take action. But there are exceptions.
The employer may have cause for action if an employee implicates their employer in some way in an egregious post, for example:
- referring to their employer
- mentioning their place of work
- wearing a company uniform; or
- wearing company-branded swag such as a baseball cap
- driving a company-branded vehicle
Another consideration is if the employee's position inherently comes with an expectation of a high level of public confidence and trust, such as a teacher or police officer. Or an airline pilot.
Termination without Cause
Let's remember that "Normally, an employer has the right to terminate any non-unionized employee for any reason whatsoever, as long as they are provided appropriate notice. Therefore, employers who disagree with public statements made by their employees, even if those statements are not clearly inappropriate, are within their rights to discipline or dismiss them by providing severance", says Daniel Lublin of Whitten & Lublin in an October 13 Globe & Mail article " Workplace laws won’t protect you from being fired for making comments deemed hateful online".
"However, there is one big exception. Human rights legislation throughout the country prohibits differential treatment (for example, any form of punishment) in the workplace based on possessing personal traits such as ancestry, race, citizenship, ethnic origin and place of origin. Therefore, an employer could violate human rights legislation for penalizing an employee who has publicly supported or criticized a country or its people, but only if that individual’s personal characteristics align with the intended protection of human rights legislation. Simply claiming association with or support for a religious group or ancestry is not sufficient to receive protection under human rights legislation. A protected ground is based on an identifiable personal trait that someone has or a group they genuinely identify as belonging to."
Other Employer Examples
Other actual examples of employee/employer links to off-duty conduct include:
- the municipal employee using the City of Ottawa vehicle last year to participate in the convoy protest
- a Canadian teacher being terminated for writing articles on Holocaust denial.
Hate Speech or Opinion?
"Canadians have the right to privately or publicly freely express their personal views, political preferences or ideologies", says Lublin. "But that right is not absolute."
"Hate speech is not protected by the Canadian Charter of Rights and Freedoms, and neither is inciting or encouraging violence – both of which are also prohibited by Canada’s Criminal Code. Furthermore, while Canadians have the right to express their views about the current conflict in Israel without fear of government intervention, employment laws operate differently. In other words, freedom of appropriate expression does not shield you from workplace consequences when your online behaviour is deemed hateful, racist or supportive of terrorism", says Lubin.
While all cases involving off-duty conduct come under the category of 'gray zones', here are some illustrations.
On one end of the spectrum, internal workplace harassment and discrimination policies may be used to deal with an incident that is blatantly offside, as in the case of extreme hate speech or antisemitism or Islamophobia made on social media by an employee with followers that include co-workers or customers. Freedom of speech doesn't mean freedom from consequences for such speech.
"Human rights statutes compel employers to take steps to provide workplaces free from harassment and discrimination, which extends to ensuring the actions of their employees do not create or even potentially create a poisoned workplace for other employees or customers. While holding certain beliefs or expressing them privately does not automatically trigger an employer’s duty to act, where workers make offensive or derogatory remarks in public or express support for or “re-post” racist statements or videos of others, employers can be held legally responsible for failing to take steps to quickly remedy the situation", says Lubin.
"In these cases, employers will likely have just cause to terminate workers, including unionized ones, for serious misconduct (with no severance). Racist, offensive or derogatory remarks, even if made outside of the workplace and on personal social media profiles, can be sufficiently serious to render a worker’s employment incompatible with an employer’s best interests and justify termination without severance. This is especially so where social media posts can be seen by other employees or by clients who may no longer wish to work alongside or do business with a company that does not take swift action to distance itself from an employee who disseminates or promotes hatred and violence."
On the other end of the spectrum is an example of sharing an opinion which may look like this: "What's happening in Palestine is a humanitarian crisis."
This would in all likelihood be deemed an opinion and would not trigger a remedy by the employer.
- Always, (always) seek advice from a qualified employment lawyer when dealing with situations noted above.
- When determining how to proceed when encountering a heated workplace incident, consider the court of public opinion when taking remedial action against an employee, even if you are well within your rights to do so.
- Make sure you have the following clear and signed policies in place:
- Code of Conduct
- Discrimination, Harassment & Bullying
- Off-Duty Conduct
- Use of Social Media & Technology
- "The reality is that many Canadians will be divided about the current escalation of violence overseas. People have the right to their personal views, even if they are prejudiced, without fear of losing their jobs. However, once those sentiments are posted online, for all to see and share, their opinions can become subject to their employers and co-workers’ scrutiny. In these situations, workers who cause harm or the potential for harm to other employees or their employer’s business interests should not expect that there are workplace laws to shield them from the consequences of their behaviour, " says Lubin.