Barreau
The Law Society of du Haut-Canada
Upper Canada I
When Dinosaurs
Roamed the Social Media Age:
Harrassment and Human Rights Cases
In the New Workplace
Andrew Pinto
Pinto Wray James LLP
Robert Tarantino
Pinto Wray James LLP
April 25 & 26, 2012
I I
(3rTIru
Continuing
Professional
Development
20
When Dinosaurs Roamed the Social Media Age:
Harassment and Human Rights Cases in the New Workplace
Andrew Pinto & Robert Tarantino
Pinto Wray James LLP
Law Society of Upper Canada, Special Lectures 2012
Employment Law and the New Workplace in the Social Media Age
April 25-26, 2012
Introduction
Social media has become a hot issue in today's workplaces. Social media is also
providing new spaces and tools through which workplace discrimination and harassment may
operate. While the fundamental legal principles concerning human rights remain relatively
unchanged, the law is grappling with novel cases where social media is involved. This article
will look at the intersection of social media and human rights and harassment cases in the
workplace. While the opportunities for breach of the Ontario Human Rights Code and other
related legislation are now greater due to social media, the ability to prove or disprove human
rights and harassment allegations, as well as educate the workforce about human rights and
diversity norms, is also greater. Employers that have not yet appreciated the risks and rewards
presented by social media do so at their considerable peril. Let us hope that the "dinosaurs" that
continue to roam our workplaces become rapidly extinct in this new social-media age.
This article will address social media in the workplace by critically reviewing relevant
and recent decisions regarding discrimination and harassment in the following areas: (a)
applications (also known as complaints) before human rights tribunals; (b) labour grievances and
arbitration; (c) personal harassment cases under amendments to Ontario's Occupational Health
and Safety Act (Bill 168); and (d) human rights allegations appended to civil claims before the
Ontario Superior Court of Justice. Throughout this review we will highlight related issues such
as the use of social media as evidence and the usual concerns around reliability and relevance. In
addition, we will comment on the role that internal company policies play and the need for
businesses to develop social media policies and incorporate explicit language around use of
social media in anti-discrimination and anti-harassment workplace policies.
20 - 1
Finally, we will stress that social media need not be feared. We hope to demystify social
media and suggest ways for a sensible approach toward addressing social media issues in the
workplace. Social media if deployed correctly can be a great new tool and resource to help
companies thrive while maintaining a culture of respect in the workplace.
What is Social Media?
Naturally, a definition of 'social media' can be found on the social media website
Wikipedia: "Social media includes web-based and mobile technologies used to
tum communication into interactive dialogue."l 'Social media' is a broad term used to describe
web-based programs and applications that link people together and allow users to generate their
own content. 'Social media' also describes physical devices on which these programs and
applications may be used, such as smart phones, tablet computers, laptops, and 'traditional'
desktop computers. 'Social media' is both the iPhone / Blackberry / other smartphone device as
well as the applications such as Facebook and Twitter on that device.
Examples of 'social media' are social networking websites such as Facebook, LinkedIn,
and Google+; blogging websites like Blogger, WordPress, and Tumblr; micro-blogging sites
such as Twitter; music-based websites like MySpace; video uploading platforms like YouTube;
photo uploading programs such as Flickr; enterprise and internal business platforms like
Yammer; collaborative content applications called 'wikis' with Wikipedia being the most
famous; and even the now old-fashioned email. What these all have in common is a dynamic
ability to connect people together and provide a forum for sharing information and generating
content. How they're different from previous forms of socializing is their amazing ability to
1
Wikipedia, "Social media" (2012), online: Wikipedia
20 - 2
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provide content to large numbers of people instantaneously. The collective, interactive,
distributive and instantaneous power of social media presents amazing opportunities, but it also
creates new forms of risk characterized by spontaneous, unfiltered, irretrievable comments that
are instantly broadcast and rebroadcast in unanticipated ways. Clearly, the opportunities for
human rights and related breaches are manifold. 2
Discrimination and Harassment in Human Rights Cases
In Ontario, the Human Rights Code 3 seeks to recognize and protect the inherent human
dignity of each person by prohibiting conduct that is discriminatory and harassing within a
defined set of social areas such as employment, accommodation (housing), and services on the
basis of prohibited grounds. Section 5(1) prohibits discrimination and differential treatment in
employment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship,
creed, sex, sexual orientation, age, record of offences, marital status, family status, or disability.
The enumerated ground of 'sex' includes pregnancy. The prohibited grounds under the Code are
to be given a broad and purposive interpretation. As society evolves, new forms and
appreciations of discrimination and harassment such as based on gender identity and alcohol and
substance addiction have been woven into the law.
Section 5(2) provides for an employee's right to be free from harassment in the
workplace on the same grounds. 'Harassment' is defined in section 10(1) as "a course of
vexatious comment or conduct that is known or ought reasonably to be known to be
unwelcome." Human rights-based harassment can be distinguished from personal harassment,
Some public figures have even decided to quit using social media in part because of the many offensive, racist, or
other remarks posted to them. For example, see: Charlie Angus, "Why I'm Saying Goodbye to Twitter" The
Huffington Post, Canada (2 Apri12012), online:
2
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which carries an identical definition but is not based on one of the Code enumerated grounds.
Personal harassment or workplace intimidation, bullying and psychological harassment is often
aligned with and seen as a potential precursor to workplace violence. Accordingly, laws
prohibiting personal harassment have their origins in health and safety concerns and less so from
a human rights perspective - which is not to say that these laws don't share much in common.
We will consider personal harassment below when we consider the amendments made to
Ontario's Occupational Health and Safety Act known as Bill 168, which came into effect on June
15, 2010. Several other provinces have similar anti-workplace harassment and violence
provIsIons.
It is important for employers to keep in mind that they may be held liable for any
discriminatory acts of their employees on the basis of vicarious liability.4 Employers, therefore,
have an obligation to treat employees equally and also have an obligation to foster and maintain
a discrimination and harassment free workplace. Human rights laws have gone a step further and
established a "duty to investigate". An employer's failure to investigate, even where the
allegations of discrimination and harassment may be unfounded, can give rise to an independent
breach of the Code. 5
Under section 25 of the Code, discrimination in employment extends to advertising
employment opportunities, recruitment, the application process, and job interviews. In fact,
recruitment and job interviews are one area that is currently developing as prospective employers
search out potential employees on their Facebook and LinkedIn accounts. Recently, both the
Globe and Mail and Toronto Star featured articles about employers who are requiring that
Robichaudv. Canada (Treasury Board), [1987] 2 SCR 84.
See, for example: Stillo v. Toronto Transit Commission, 2011 HRTO 2143; and Laskowska v. Marineland of
Canada Inc., 2005 HRTO 30.
4
5
20 - 4
potential employees hand over their Facebook username and password to allow employers to log
onto their private accounts and look through them. 6 Not surprisingly, this has set off a firestorm
of protest concerning the egregious violation of employees' privacy rights, as employers are
seen as taking advantage of the inherent power imbalance in the employment relationship. That
employers may have access to and therefore be making employment decisions based on all kinds
of personal information about an individual (such as their age, marital status, ethnic origin,
political and social affiliations) available on an employee's Facebook or other personal site is
highly problematic from a human rights and systemic discrimination perspective. Facebook has
responded to this new practice with a warning to employers that it violates privacy and creates
potential legal liability on human rights grounds. 7
Several cases have emerged in recent years at human rights tribunals, primarily in British
Columbia, where social media has played a role as either the source of alleged discrimination
and/or harassment, or has provided an evidentiary foundation for such allegations. In three cases
from British Columbia, complaints of discrimination were made and decisions were rendered on
an application by the respondents to dismiss the complaint on a preliminary basis.
In Adams v. KM Paquette & Associates Ltd. ,8 Ms. Nada Adams filed a complaint against
KM Paquette & Associates Ltd. alleging discrimination in employment on the basis of religion
and race. KM is an employment agency that receives job applications over the internet and then
interviews prospective employees to match with potential employers. Ms. Adams submitted a
6 Manuel Valdes and Shannon McFarland, "Is it OK for a job interviewer to ask for your Facebook login?" The
Associated Press (20 March 2012), online: The Globe and Mail
Morgan Campbell, "Would you reveal your Facebook password for a job?" The
Toronto Star (20 March 2012), online:
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resume and application to which she received an enthusiastic response from KM and was called
in for an interview. When she arrived, Ms. Adams alleged that the interviewer had a different
tone and Ms. Adams alleged that this was because she is a Muslim woman who wears a veil. In
KM's response, they describe pictures they viewed on various social media websites where Ms.
Adams does not wear a veil. Ms. Adams countered that pictures on social media websites are
only shadows of her real self and she has no problem presenting pictures of herself without a
veil.
Panel Member Kurt Neuenfeldt dismissed the complaint on the preliminary basis of no
reasonable prospect of success because he found Ms. Adams's allegations of discrimination to be
based "almost entirely on conjecture, supposition, and, as stated by her, 'intuition' .,,9 Curiously,
the issue of why or when KM viewed Ms. Adams's social media pages was not discussed by the
panel member or made a real issue by the parties.
Berezan v. MR. Photo & Cameras Ltd., 10 was another interesting case at the British
Columbia Human Rights Tribunal about a complaint of discrimination in employment on the
basis of sexual orientation, marital status, and family status. Ms. Tammy Berezan and Ms.
Debbie Wray were employees of the respondent company who entered into a relationship and
began living together while they were employed there. Both women were simultaneously
terminated without warning and alleged that it was a result of their relationship together. The
respondent countered that it fired them for legitimate job performance reasons and economic
factors. The respondent had apparently not been aware of their relationship prior to dismissing
them, but had made comments about them being "joined at the hip."
9
Adams, supra note 8 at para. 54.
2010 BCHRT 42 [Berezan].
10
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Shortly after dismissing Ms. Berezan and Ms. Wray, the employer stated that he was
surprised to learn from his daughter, who was Facebook friends with Ms. Berezan, that Ms.
Berezan had updated her status to indicate she was in a relationship with Ms. Wray. The
employer maintained that their relationship played no role in his decision to terminate their
employment. Further, the issue of Ms. Berezan's Facebook status was not fleshed out in this
decision, but may have been used to support the employer's position that he didn't learn of their
relationship until after they were dismissed.
Panel Member Tonie Beharrell ultimately found that there was a reasonable prospect of
success on the basis of sexual orientation, noting that material issues were not settled and sexual
orientation need only be one factor in the respondent's decision to dismiss the complainants.
Finally, the case of Estrada v. Clace Holdings Ltd. 11 provides a good example of social
media playing an integral role in a decision to terminate employment and also the vital issue of
the reliability of Facebook evidence at a hearing. Mr. Walter Estrada filed a complaint alleging
discrimination in employment on the basis of record of offence. The complainant alleged that he
was fired because an ex-girlfriend told the respondents that he had a criminal record. The
respondents admitted that they fired the complainant because they found out about his criminal
record, but tried to explain that it was legitimate for them to do so in the circumstances.
The respondents said that they learned from two young women who worked at the
company with the complainant that they were invited to become his Facebook friends and when
they did so and reviewed his Facebook profile they learned that he had a criminal record for
serious criminal offences, including sexual assault. The Facebook profile contained graphic
11
2008 BCHRT 232 [Estrada].
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details of the sexual assault as well as suggestive photos of the complainant's clothed
midsection. The two women employees informed the respondents of this. The manager
eventually viewed the Facebook profile and subsequently fired the complainant. The respondents
stated that they actually had no personal knowledge of whether the complainant actually had a
criminal record, but that his invitation to his female co-workers made them feel vulnerable
especially given that they sometimes worked alone with him. Thus, the respondents claimed that
the termination was not because of the complainant's criminal record, but because of his
inappropriate invitation for the women to befriend him on Facebook to view the threatening
content.
The complainant admitted that he did in fact have a criminal record, but that he served his
sentence and was released. The issue here is that the complainant asserted he never had a
Facebook account and profile; rather an imposter had created an account under his name,
inputted the content, and invited the female colleagues to befriend him. Panel Member
Neuenfeldt determined that he could not dismiss the complaint on a preliminary basis. He
dismissed the respondents' application to do so and noted that the merits and evidentiary issues
should be dealt with at a full hearing.
These three cases provide a useful survey of how social media intersects with human
rights and discrimination. Adams looks at an allegation of discrimination during the recruitment
and hiring phase and questions how one presents oneself online and in the real world; Berezan
highlights the fact that Facebook can be used to discern information about people that may
otherwise not be publicly available and begs the question as to how this information may be used
or viewed by others; finally, Estrada is a clear example of the challenging evidentiary issues
underlying social media evidence. As we will see in the next section looking at labour
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arbitration cases, social media can be used as a platform for harassment and discrimination.
These cases provide a good review of how arbitrators have handled these challenging situations.
Grievances and Labour Arbitration Cases
In unionized workplaces, the individual "master-servant" relationship as between
employer and employee is supplanted by the employer-union relationship where all differences
of agreement concerning the interpretation and application of the collective agreement must be
handled through grievance steps and, ultimately, labour arbitration. Access to civil courts by
unionized employees or "grievors" is precluded pursuant to the "exclusive jurisdiction" model of
labour arbitration pursuant to the Weber line of cases. 12 Furthermore, collective agreements
have explicitly or impliedly incorporated anti-discrimination and harassment clauses and the
caselaw has confirmed that labour arbitrators have the jurisdiction to interpret and apply human
rights laws in rendering arbitral decisions. 13 Effectively, this means that for unionized
employees, whether at the federal or provincial level, their discrimination and harassment
allegations are litigated before labour arbitrators or, if they are public service employees, before
specialized administrative tribunals,14 and not before human rights tribunals. A survey of these
cases is instructive.
In Alberta Distillers Ltd. v. United Food and Commercial Workers, Local 1118
(Whiteside Grievance), 15 Arbitrator D. P. Jones considered an allegation of unjust dismissal and
the Union's application for non-suit at the end of the employer's case. Ms. Conrad, an employee
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.
See: Parry Sound (District) Social Services Administration Board v. O.P.S.E. U, Local 324, 2003 SCC 42, [2003]
2 S.C.R. 157; and Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48(12)0).
14 For instance, many Ontario public service employees have their grievance arbitrations heard before the Grievance
Settlement Board; and their federal counterparts appear before the Public Service Labour Relations Board.
15 [2009] A.G.A.A. No. 46 [Alberta Distillers].
12
13
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in the company's packaging department, resigned in part because of her concerns about a
negative atmosphere in the bottle shop. At her exit interview she told her employer that she had
been the subject of derogatory comments made by one employee, Ms. Carlson, on the Facebook
page of another employee, Ms. Whiteside, who was the grievor at this arbitration. This
information from Ms. Conrad caused management to be concerned that workplace harassment
may have occurred, including through Facebook.
The company had a harassment policy, which created a joint obligation between the
employer and the union to ensure a harassment-free workplace. However, the policy did not
explicitly address the issue of how to use social media in or outside of the workplace. In this
incident, the comments were posted outside the workplace and Ms. Conrad did not actually see
them, though they were subsequently brought to her attention. In the final determination, the
arbitrator granted the union's application for non-suit, finding that someone other than the
grievor was responsible for posting derogatory comments on the grievor's Facebook wall.
With the prevalence of BlackBerrys, iPhones and other smartphone devices in today's
workplaces, the line demarcating work and personal life often becomes blurry. Many companies
now provide company owned devices to employees to use for both work related and personal use
during business hours and out of the office. The issue of off-duty conduct related to social media
has added another layer of complexity and nuance to the concern around misuse of social media
leading to discrimination and harassment. The recent case of Alberta Union ofProvincial
Employees v. Alberta Heath Services (Hajrallahu Grievance) 16 is one such example.
16
[2012] A.G.A.A. No.7 [Alberta Health Services].
20 - 10
In this case, allegations of harassment and sexual harassment were made by one
employee against another, whose job was ultimately terminated. The terminated employee
grieved and a major issue arose related to a number of messages posted on Facebook between the
parties. The employer had a workplace harassment policy in effect and conducted an
investigation once the allegations were brought to their attention. Ultimately, the arbitration
panel, chaired by J. Leslie Wallace, decided that although the conduct was moderately serious, it
did not warrant dismissal. The panel ordered the grievor to be reinstated with the company, but
in a different job and setting so as to separate the employees.
The interesting issue raised in this case was the fact that the Facebook harassment took
place partly outside of work and was considered to be partly off-duty conduct. The question
arose as to whether off-duty conduct can have an effect in the workplace such that an employer
is within its authority to sanction the conduct and terminate an employee. The arbitration panel
referred to the 1967 case of Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int'l
Union, Local 9-670 (Mattis Grievance) 17 where Arbitrator Anderson enumerated circumstances
in which an employer may take disciplinary action against an employee for off-duty conduct. As
cited in Alberta Health Services, Anderson concluded that "off-duty conduct may be the subject
of discipline only where the employer can demonstrate that the conduct engages a real and
tangible interest of the employer.,,18
In Millhaven, Arbitrator Anderson listed five circumstances: where the conduct harms the
company's reputation or product; where the behaviour renders the employee unable to perform
his or her duties satisfactorily; where the behaviour leads to refusal, reluctance or inability of
17
18
[1967] O.I.A.A. No.4 (QL) [Millhaven].
Alberta Health Services, supra note 16 at para. 61.
20 - 11
other employees to work with him or her; where the grievor has been guilty of a serious breach
of the Criminal Code such that it renders his conduct injurious to the general reputation of the
company; or where the conduct makes it difficult for a company to carry out its function of
efficiently managing its works and directing its workforce. 19
Off-duty conduct that impacted the employer was central in Re Lougheed Imports Ltd, 20
where two unionized employees were fired for making derogatory comments about the employer
on Facebook. The termination letters set out that they were being terminated for making
disrespectful, damaging and derogatory comments on Facebook, which were inappropriate,
insubordinate, and created a hostile working environment. The employer also said that the
comments were likely to damage the reputation and business interests of the employer. The
employees worked at West Coast Mazda. Their comments related to the quality of Mazda cars
and suggested that people should shop elsewhere.
Though the issue was not raised directly, this case does suggest the possibility of using
the cause of action of tortious interference with business relations when an employee makes
damaging comments over social media that has a negative impact on a company's business.
Though not a new cause of action in and of itself, it would be a novel claim to use this cause of
action in conjunction with social media.
There are several more cases in the labour arbitration category that deal with the issue of
social media in the workplace and we recommend them for further reading: Chatham-Kent
(Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union
19
20
Mil/haven, supra note 17 at para. 20.
[2010] B.C.L.R.B.D. No. 190 (QL) [Re LougheedJ.
20 - 12
ofCanada (CAW-Canada), Local 127 (Clarke Grievance),21 Hydro One Networks Inc. v. Society
ofEnergy Professionals (Labatt Grievance),22 and York University Board ofGovernors v. York
University Faculty Assn. (Laurendeau Grievance). 23
Personal Harassment Cases
Personal harassment differs from discrimination-based harassment because it does not
need to be based on a Code enumerated ground of discrimination, such as race, religion, or sex.
Personal harassment under Bill 168 24 and the Ontario Occupational Health and Safety Act25
address harassment and violence, which includes the threat of violence, in the workplace. Bill
168 requires that employers prepare a workplace harassment policy and develop and maintain a
program to implement the policy. It defines 'workplace harassment' as "engaging in a course of
vexatious comment or conduct against a worker in a workplace that is known or ought
reasonably to be known to be unwelcome." Moreover, an employer must develop and
implement a procedure for workers to report incidents of workplace harassment and an
investigation system outlining how the employer will address complaints. Although Bill 168
does not create any new cause of action to allow an aggrieved worker to file a complaint or claim
and seek damages, it does set up a regime whereby an independent inspector may come in to a
workplace and determine whether an employer has failed to ensure a workplace free from
personal harassment.
(2007), 159 L.A.C. (4th) 321 (Ont. Lab. Arb.).
[2010] O.L.A.A. No. 76 (QL) (Ont. Lab. Arb.).
23 (2009), 183 L.A.C. (4th) 404 (Ont. Lab. Arb.).
24 Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), SO 2009, C.23,
online: Legislative Assembly of Ontario
< .
25 RSO 1990, C 0.1 [OHSA].
21
22
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20 - 13
Lee v. Ontario (Ministry ofCommunity Safety and Correctional Services),26 is one case
that came before the Ontario Public Service Grievance Board where allegations were made
against the employer for failing to provide a workplace free of harassment and discrimination in
part breaching the OHSA, although the amendments of Bill 168 had not yet come into effect. A
group of Operational Managers at Elgin Middlesex Detention Centre complained that a blog
associated with Correctional Officers who were represented by OPSEU, Local 108 contained
offensive and defamatory material directed at managers. Vice-Chair Kathleen G. O'Neil
ultimately dismissed the employer's preliminary motion, finding that there was an arguable case
that the employer failed to provide a workplace free from harassment. She summarized:
Venting between employees over the real or perceived inadequacies of their
managers has a different aspect when it is limited to personal conversations in
off-duty or social situations, no matter how widespread, compared to when it
is posted for all to see at any time on the internet. Nonetheless, if, when and
how that translates into workplace harassment or a poisoned work
environment worthy of remedy for their supervisors, and if so, what kind of
remedy, are novel questions without clearly defined answer at this stage. 27
By the time Kingston (City) v. Canadian Union ofPublic Employees, Local 109 (Hudson
Grievance)28 had been decided, the OHSA had been amended to include Bill 168 and, although
this case did not involve the use of social media, Ontario Labour Arbitration Panel Member
Elaine Newman thoroughly reviewed how Bill 168 has changed the landscape of harassment and
violence in the workplace. This case is instructive and may be used to consider how Bill 168
could apply in situations involving social media in the workplace.
This case concerned the grievance of Ms. Donna Hudson, a 47 year old employee with 28
years of seniority, who was terminated for allegedly uttering a death threat against a co-worker
[2011] O.P.S.G.B.A. No. 11 (QL) [Lee].
Ibid. at para 44.
28 (2011), 210 L.A.C. (4th) 205 [Hudson Grievance].
26
27
20 - 14
two days after returning from an anger management counselling course. Under the new Bill 168,
the employer conducted an investigation into the allegation and ultimately determined that
termination was the appropriate disciplinary response given the seriousness of the allegations and
history of Ms. Hudson in the workplace. Upon arbitration, the union argued that Bill 168 did not
usher in a regime of zero tolerance and that because it is a new amendment, its meaning is still
unclear and must be considered.
Arbitrator Newman first determined that Ms. Hudson did in fact utter the alleged death
threat against her co-worker. She then reviewed and applied Bill 168, finding that it has changed
workplace law in a significant way based on the theory that workplace harassment predicts
workplace violence. 29 Threats of violence must now be taken very seriously by an employer.
Arbitrator Newman proceeded to unpack Bill 168 and its meaning:
Employers must be proactive in the identification of potential workplace violence, must
perform risk assessments, develop a policy and program to address risks, and perform
and necessary training and implementation of its programs; 30
Consistent with the OHSA more generally, an employer must protect a worker from a
"hazardous person" in the workplace and failure to do so will attract penalties under the
Act·,31 and
Workplace safety trumps personal privacy where an employer or supervisor must provide
information to a worker if he or she is likely to encounter, in the workplace, an individual
Ibid. at para. 223.
Ibid. at para. 224.
31 Ibid. at para. 226.
29
30
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with a history of violent conduct, and if the worker is likely to be exposed to physical
injury; 32
Arbitrator Newman then identified four significant ways in which Bill 168 amendments
affect the analytical process:
1. Bill 168 clarified the way in which workplace parties, adjudicators, arbitrators and judges
must think about incidents involving inappropriate use of language in the workplace.
Language that is vexatious and unwelcome is considered harassment and must be taken
very seriously. Death threats are elevated to workplace violence in and of itself regardless
of whether there is evidence of an immediate ability to do physical harm. 33
2. It changed the way in which an employer and worker must react to an allegation of a
threat. It must be reported, investigated, and addressed. Utterance of a threat in the
workplace requires that the workplace parties "stop cold." An employer, however, must
be careful not to proceed without the facts or overreact. While Bill 168 does not require a
regime of zero tolerance, employers are required to provide a safe workplace and take
reasonable precautions. Discipline must be reasonable and proportionate in the
circumstances of each case. 34
3. The bill impacts on the manner in which an arbitrator might assess the reasonableness of
termination as an appropriate form of discipline. While the usual factors outlined in the
case law apply, there is a heightened seriousness of the event. 35
Ibid.
Ibid.
34 Ibid.
35 Ibid.
32
33
at para. 227.
at paras. 231 and 234.
at paras. 238-244.
at paras. 247-248.
20 - 16
4. A new factor is added to the list of considerations when assessing reasonability and
proportionality of discipline: workplace safety.
In the final determination, Arbitrator Newman found that termination was appropriate
and proportionate in the circumstances, and dismissed the grievance.
Future cases that consider Bill 168 may very well incorporate harassment or workplace
violence by means of social media. The mere fact that programs like Facebook and Twitter
make it easy to disseminate information to a large group of people which can't be easily undone,
if at all, sets the stage for potential workplace harassment. The obligations under Bill 168
require that workers report incidents of harassment and violence, and that employers take a
proactive approach to preventing incidents. This certainly weighs heavy on the issue of setting
out a clear social media policy, defining workplace harassment and violence to include use of
social media, and potential monitoring and privacy concerns.
Human Rights in the Superior Court of Justice
One relatively new cause of action that came in with the amendments to the Ontario
Human Rights Code, effective June 30, 2008, is the ability to append a human rights complaint
to an otherwise viable civil cause of action in Superior Court such as wrongful or constructive
dismissal. Under section 46.1 of the Code, a plaintiff may now claim damages for a breach of
the Code in a civil proceeding, and the Court has the jurisdiction to award both monetary
compensation and restitution to a party whose human rights have been infringed. A number of
cases have made it past the pleadings stage to the Ontario Superior Court of Justice claiming a
20 - 17
breach of the Code, but so far none have been dealt with on their merits, or have included a
social media component. 36
Toward Developing a Social Media Policy
As the above case law review demonstrates, social media has been implicated in a variety
of workplace issues related to human rights and harassment. Sometimes this occurs directly
within the human rights regime, other times through grievances and labour arbitration, and with
the recent introduction of Bill 168, we may now start to see more cases come through the
Occupational Health and Safety Act. Moreover, the circumstances of these cases involve a
variety of situations such as workplace harassment between employees, conflicts between
employee and employer, and the workplace vis-a.-vis the public at large. Issues have arisen
through the use of Facebook, personal blogs, and other forms of social media. In some cases, the
issue has been a matter of reconciling the impugned activity with an internal workplace policy.
In this final section, we suggest that employers develop a sensible and proactive approach
to addressing social media in the workplace: (1) develop a social media policy; (2) incorporate
social media into anti-discrimination and anti-harassment policies; and (3) provide social media
training for employers and employees. Developing this type of three-pronged approach to social
media in the workplace will have the advantages of demystifying social media to those less
experienced with it, teaching everyone about how common social media applications work to
allow a better understanding or appropriate usage, and provide clear guidelines of rules,
See, for example: Russell v. York (Regional Municipality) Police Services Board, 2011 ONSC 4619; Jaffer v. York
University, 2010 ONCA 654; Cerqueira v. Ontario, 2010 ONSC 3954; Mackie v. Toronto (City), 2010 ONSC 3801;
Aba-Alkhail v. University ofOttawa, 2010 ONSC 2385; Stokes v. St. Clair College ofAppliedArts and Technology,
2010 ONSC 2133; Parapatics v. 509433 Ontario Ltd, [2010] 0.1. No . 861 (Sup. Ct. (Sm. Cl. Ct.)); Halton
Condominium Corporation No. 59 v. Howard, [2009] 0.1. No. 3566 (Sup. Ct.); Dwyer v. Advanis Inc., [2009] 0.1.
No. 1956 (Sup. Ct.); Andrachuk v. Bell Globe Media Publishing Inc., [2009] 0.1. No. 461 (Sup. Ct.).
36
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expectations, and enforcement for on and relevant off-duty conduct. It will teach and set the
boundaries around social media in the workplace in a proactive way in order to prevent the
problems of discrimination and harassment through the inappropriate use of social media.
Developing a sensible and fair social media policy is a good idea for employers. Much
like an employee handbook and code of conduct, a social media policy will outline and address
the boundaries and appropriate use of social media in and out of the workplace. We suggest
developing such a policy in consultation with employees so that everyone has a fair opportunity
to participate in the process. This may not be practicable for every workplace, but should be
something to strive toward. We also recommend that any social media policy must accord with
applicable laws such as those under human rights, employment, labour, occupational health and
safety, and privacy regimes. It is important not to draft an overly broad policy that may affect
legitimate rights to free expression and privacy. Keep in mind that because social media use
may cross the line between on and off-duty, public and private conduct, a workplace policy must
be careful not to overstep its legal and legitimate bounds.
Here are some ideas of what to consider when developing and include in a social media
policy:
•
Is personal use of social media permitted during work hours such as breaks?
•
Is social media use a part of one's job duties and how may it be used for official business
purposes?
•
If used for business purposes, how should an employee identify him or herself and his or
her relationship to the business?
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•
Who does an employee go to when questions or issues arise as to appropriate use of
social media in the workplace?
•
What information is confidential and must not be transmitted via social media?
•
Should an employee connect with customers, clients, patients, other employees or
managers through personal social media accounts?
•
How will use of social media be regulated in the workplace?
•
What provisions should exist for a breach of this policy?
•
What privacy rights and free expression rights must be preserved under law?
A number of large and small companies have already developed social media policies,
which can be found online and used as aids in developing your own. 37 You can also consult an
online database of social media policies through Social Media Governance. 38 As well, a number
of articles have been written on this topic and may be useful as further reading. 39
It is also important to incorporate social media guidelines into discrimination and
harassment policies. This will make clear to employers and employees the acceptable
boundaries of usage and make clear what constitutes discrimination, discrimination-based
harassment, and personal harassment in the workplace via social media. Setting out examples of
appropriate and inappropriate usage is vital. It is also important to clarify when and how offduty conduct may permit an employer to take disciplinary action against an employee. It will
37 See, for example: 1MB
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See, for example: Tony Wilson, "Social Media Policies and your Law Firm" The Lawyers Weekly, Vol. 30, No.
11 (July 16, 2010); Tiffany Black, "How to Write a Social Media Policy", Inc. com (May 27, 2010), online: Inc.com
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also help clarify for employers their rights and obligations regarding legitimate and legal
authority to regulate social media use as well as potential areas of liability. In the human rights
field, the current issue of employers requesting username and password information of
prospective employees is a violation of their privacy rights and may open the employer up to
human rights liability where an employee is not hired and he or she is able to demonstrate that a
factor in the adverse treatment was a prohibited ground that may have been revealed through a
social networking interaction or site.
Finally, the most proactive way to address social media workplace issues is to provide
social media training for employers and employees. A short, but focused seminar can help to
demystify social media for those less familiar with it, point out the power of social media and
related risks, inform people of privacy settings, and may even provide a good route through
which to incorporate social media productively into a workplace.
Conclusion: New Causes of Action?
In this review of social media in the workplace we have tried to highlight areas of
concern related to human rights and harassment. While the technology may be new, sound legal
principles are generally capable of providing guidelines and handling problems that arise. Social
media provides a vast new array of tools and platforms where discrimination and harassment
may take place. It is vital for employees and employers to be aware of their rights and
responsibilities. Moreover, social media has provided a new evidentiary foundation to both
prove and disprove allegations of discrimination and harassment, but the laws of evidence
around relevance and importantly reliability require that one not jump to conclusions without
properly investigating the facts.
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While there may not be new causes of action per se, new avenues for alleging
discrimination and harassment have opened up. Under section 46.1 of the Code, plaintiffs may
now seek human rights damages in a civil proceeding before the Ontario Superior Court, and the
law is still young in its development in this area. With the incorporation of Bill 168 into the
Occupational Health and Safety Act, employers are required to develop policies and procedures
for personal workplace harassment, which certainly includes social media use. The use of social
media in human resources and recruitment opens up a new avenue for human rights liability
where an employer may be alleged to have discriminated against a prospective employee by
conducting a background check on that person's Facebook or LinkedIn account and making
adverse employment decisions based on a prohibited ground. As outlined above, we recommend
a sensible and proactive approach to addressing new issues raised by social media use in the
workplace. We recommend that employers develop a social media policy, incorporate social
media use into discrimination and harassment policies, and provide social media and human
rights / harassment training.
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