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workplace law

"In publicly challenging the direction given to you by both the president of the university and the provost, you have demonstrated egregious conduct and insubordination and have destroyed your relationship with the senior leadership team of the university."

So read the termination letter delivered to Robert Buckingham, dean of public health at the University of Saskatchewan, who was fired (and then rehired as a professor but not reinstated as dean) last month after he defied an alleged gag order and criticized the university's plans to cut staff and cancel programs.

Publicly disagreeing with your employer, or criticizing it, is now easier than ever. The Internet, social networking and blogs provide a potentially unlimited audience to most employees. All they need is an opinion and a computer. But, while publicly criticizing your employer may be popular with the crowd, it is unlikely to become more popular with the courts. While Canadians are guaranteed the right to freedom of speech, that does not translate to freedom from workplace consequences.

In Canada, employers still get to call most workplace shots. Deciding whom to hire and fire is still exclusively within an employer's domain. When there is a dismissal, the courts can intervene in just two scenarios – where an employee is not paid enough severance or where an employee is fired for alleged misconduct, and not paid any severance. Publicly criticizing your employer will often fall into this second category, so the relevant question is whether courts view such behaviour as a form of misconduct.

An employee's public comments about his employer can be considered misconduct where those statements are harmful to the employer's interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees.

For example, if a doctor working for a pharmaceutical company openly claims that its drug has unintended negative side effects, the company could be sued, even if that claim is later disproved. Another more common reason is that all employees have an unwritten duty of loyalty to their employers, which is inconsistent with publicly disparaging them and openly disagreeing with them. This is especially so where an employment contract or policy manual confirms that publicly commenting about the employer in a negative manner is a form of misconduct.

Similarly, where an employer warns its employees not to make public statements about its affairs that it finds problematic – and then someone does – this would be considered insubordination, which in serious cases can be cause for immediate dismissal.

In general, the more important the employee is to a business, the greater his responsibility to act in accordance with its goals, standards and expectations. Senior leaders, therefore, are judged more critically than junior staff. Some key employees are even elevated to the status of a fiduciary – which is a legal doctrine requiring such an employee to put the interests of the employer even before his own.

An employee's duty of loyalty to his employer does not mean that he cannot hold personal opinions or express his personal views. Employees can speak their mind privately or publicly on all matters that interest them. But if those views are damaging to their employer's business, in combination with being made to third parties, the media, or publicly posted on social media, they should not expect that the right to free speech will protect them. Indeed, if an employer stood by and did nothing, this could further harm its interests. Few responsible employers would permit an employee to publicly criticize its brand or its choices. Fewer would encourage this behaviour based on the principle of free speech.

In Canada, there are only limited statutory whistle-blower protection laws, and those regulations that are in place are narrowly defined or not frequently invoked. This means that being fired for exposing an employer's defects is mostly a civil matter between the employer and that employee. In the United States, however, there are financial rewards for exposing fraud, and penalties and fines for employers who try to silence or retaliate against employees who expose fraud.

There are exceptions to the limits placed on an employee's right to publicly challenge his employer. A university setting that encourages academic freedom may be one of them. But in general, like it or not, speaking your mind can sometimes affect the health of your career.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: