Employer Reputation and the Right of Workers to a Private Life in Dismissal Cases: Finding the Balance in Canada

Dismissal of workers for their online and social media activity in circumstances that employers may consider ‘inappropriate,’ even if ‘off-duty,’ has gained much attention recently. The test to determine whether dismissal for off-duty conduct of unionized workers is justified was formulated almost sixty years ago in Millhaven, in which a worker was dismissed for coming to colleagues’ houses at 3:00 a.m. to damage their property. Despite claiming to strike a balance between employer interests and worker rights, Millhaven, and its subsequent application, places great emphasis on employer reputation – emphasis that has recently increased in prominence. In this article, we examine how technological and societal changes contributed to this increased significance and to the erosion of workers’ right to a private life. Employer reputation has become more expansive with the growth of corporate social responsibility and more volatile, yet easier to impact, with the widespread use of technology. Concurrently, technology has erased traditional boundaries between work and personal life, leading to conflicts between workers and employers over worker ‘off-duty’ conduct and what control employers should exercise over it. Protecting the right of workers to a private life in such circumstances has become more important and critical than ever before, and, therefore, Millhaven should be reformulated to restore the balance between employers and workers. We propose a new test that recognizes the importance of the right to a private life and the values it supports, such as individuality and freedom of expression. Our new twofold test strikes a proportionate balance between the right of workers to a private life and the employer’s reputational concerns and obligations to maintain an effective and inclusive workforce. Employers are required to prove that the harm to their reputation has been long-lasting, substantial, and quantifiable and that they are unable to manage the workplace without significant hardship. This principled approach should apply to all workers.