Employee feels heat after online beef about gift of barbecue sauce

By LegalMatters Staff • An employee who was fired for going online to criticize his company after receiving a $6 bottle of barbecue sauce as a holiday gift should serve as a warning for workers and those who employ them, says Toronto employment lawyer Ellen Low.

Low, principal of Ellen Low Employment Law, says it’s important for companies to have clear employment policies.

“The employees then have some expectation in regards to social media postings,” she tells LegalMattersCanada.ca. “From an employee perspective, you certainly have to be careful about what you post because we know that off–duty conduct that brings the employer’s reputation into disrepute can actually be cause for termination

“I don’t think this case meets the threshold of cause for termination but does it warrant discipline? I believe it does,” she adds. “This is the kind of conduct where he should have had a warning. The courts look at the conduct, they look at the context and evaluate whether or not the punishment fits the crime.”

CTV reports that a man sent a tweet from an anonymous Twitter account that, read: “What kind of multi billion-dollar company gifts it’s (sic) Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday gift box!” The tweet tagged the company’s U.S. and Canadian handles, according to the report.

The man told CTV that he got a phone call from his manager telling him to delete the tweet, which he had already done. On Dec. he was called in for a meeting where he was fired. A letter from the company stated he was terminated for “violation of standards of conduct policy – acceptable conduct section,” CTV reports.

Termination may have been an overreaction

The CEO of the company has since said the firing may have been an overreaction, according to the report. Meanwhile, the man says he has retained a lawyer.

Low, who is not involved with the case and comments generally, says she expects the matter will be resolved quickly.

“Was the response proportional to the misconduct? In Ontario you can terminate someone on a without cause basis effectively whenever you like as long as you give them appropriate notice and severance under the Employment Standards Act as well the employee’s contract,” she says.

“Usually cause is reserved for conduct that is totally at odds with a person’s employment and traditionally that is reserved for such things as stealing, lying or embezzlement,” says Low.“Absent that usually what we are seeing is the court mandating that there has to be some sort of progressive discipline or a warning or a chance to correct the behaviour.”

Low says it appears the company “took the position that this tweet was in and of itself so egregious that the employee effectively breached the employment contract.”

“For an employer to able to fire this worker on a with cause basis you want to be able to show some sort of social media policy or computer use policy that talks about inappropriate tweets or tweets that mention the company,” she says.

Low says when she drafts a media or computer-use policy she will include a provision stating that the employer will monitor social media “and may request the posts that they think are inappropriate or mention the company either expressly or by implication be taken down, and failure to do so maybe a disciplinary issue.”

Blur between private life and work

She says she will also make it “really clear that if a worker posts something online on their own time that is contrary to protections under the Ontario Human Rights Code or is harassing or disparaging a colleague,” they may face punishment. 

Low says there “is more and more awareness of the blur between private life and work” and it is important to understand the consequences.

“If you are going to disparage your employer online you may be subject to discipline in the workplace,” she notes.

Low says workers who find themselves in violation of a workplace policy should get advice.

“Whenever, you are fired on a with cause basis, I recommend seeking employment law counsel as soon as possible,” she says.