Social Media And Disciplinary Measures: Insights From Two Recent Decisions

An employee's use of social media — even in their private lives — remains a significant concern for employers, who must manage the potential consequences of online content that could harm their reputation. Two recent arbitral decisions illustrate this reality and explore the circumstances in which an employee's social media activity may warrant disciplinary action, including termination of employment.

Société en nom collectif NouvLR c. Union des opérateurs de machinerie lourde, local 791

Background

In the first case,¹ an employee posted a video on a social media platform during working hours that contained derogatory remarks about influencers. The footage showed the employee on the worksite wearing a hard hat bearing his employer's logo, which was in violation of internal policies. The video was widely shared, leading to comments that associated the employer with the statements it contained. Although the employee admitted his mistake and quickly removed his post, the employer found that his actions amounted to serious misconduct and dismissed him for conduct that was disloyal and contrary to the company's values.

The Arbitral Tribunal's Decision

The arbitrator found that the post constituted misconduct and that the presence of the company's logo caused the employer to be associated with the posted comments in a way that could harm its reputation. However, the arbitrator considered that the breach was not serious enough to justify dismissal, particularly because the comments were not directed at the employer.

Several mitigating factors were considered, including the employee's three years of service, his clean disciplinary record, the prompt removal of the video at his foreman's request, and his genuine expression of regret during the hearing.

The arbitrator also found that the employer had not demonstrated serious prejudice or irreparable harm to its reputation. Indeed, although some online comments were noted, none had disparaged the company.

The arbitrator further found that the principle of progressive discipline had not been respected and concluded that the dismissal constituted a disproportionate response. Accordingly, the arbitrator ordered a six‑week unpaid suspension along with the employee's reinstatement.

Syndicat des employées et employés professionnels-les de bureau, section locale 571 (SEPB-FTQ) c. Autorité des marchés financiers

Background

In the second case,² a young lawyer in her probationary period with a public body travelled to Mexico in December 2021 — a trip that later became highly publicized because of the disorderly behaviour of some travellers who did not follow the health guidelines. Upon arriving at the hotel lobby in Mexico, an influencer recorded a social‑media 'story' showing the lawyer using a red undergarment as a sanitary mask. The video quickly went viral and drew significant online reactions, including a comment that directly identified the public body as her employer. Given the adverse media coverage, the employer terminated her employment, citing a serious lack of judgment and reputational harm to the organization.

The Arbitral Tribunal's Decision

The arbitration tribunal dismissed the employee's grievance, finding that the employer's decision was neither abusive nor arbitrary. Even though the employee herself did not share the video on social media and had attempted to limit the ability to identify her by changing her username ('screen name'), the arbitrator found that the effect on the employer remained the same.

The arbitrator emphasized the importance of the employer's mission as a public body responsible for ensuring compliance in a highly regulated and critical sector. Accordingly, the employer could reasonably believe that its image and reputation were compromised, particularly during a pandemic period when compliance with health measures was a highly sensitive matter.

Despite the professionalism and competence this employee had consistently demonstrated, her behaviour in the video was found to be incompatible with the requirements of her role as a lawyer, as it undermined the credibility expected of her by the business executives she was to advise and support. It is important to note, however, that because she was dismissed during her probationary period, the onus was not on establishing good and sufficient cause, but on determining whether the employer's decision was abusive, made in bad faith, or arbitrary.

Practical Guidance for Employers

Although this type of decision generally involves balancing freedom of expression and the duty of loyalty, these decisions demonstrate that an employee's freedom of expression on social media may be limited when their statements or actions — even if shared by third parties — harm the employer's reputation or image. The arbitrators considered a combination of factors, including mitigating or aggravating elements, the status of both the employer and the employee, as well as the connection between the alleged misconduct and the organization.

In light of these recent decisions, before imposing any disciplinary measure related to a social media post, HR professionals and managers should:

1. Determine whether the employer is identifiable: e.g., through a visible logo, uniform or workplace setting, or through third-party identification in any media;
2. Assess actual harm: document and determine any tangible impact on the organization's image or reputation;
3. Use progressive discipline: assess mitigating and aggravating factors before considering dismissal;
4. Maintain clear policies: set out the rules regarding social media use and explain the reputational risks involved.

Footnotes

1 Société en nom collectif NouvLR c. Union des opérateurs de machinerie lourde, local 791, 2025 113370 (QC SAT).

2 Syndicat des employées et employés professionnels-les de bureau, section locale 571 (SEPB-FTQ) c. Autorité des marchés financiers, 2025 81137 (QC SAT).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.