5. Defamation
Statements posted online that negatively affect the reputation or image of another person, business or product may be considered defamatory.
In DHL Express (Canada) Ltd. and C.A.W., Local 4215, the grievor, a local unit chair and vice-president, sent a series of emails to management personnel (copying many other company employees) in which he used profanity, called company management “puppets” and used highly volatile language.
The arbitrator found that the statements made about management amounted to legal libel, potentially giving rise to a civil action for damages, and that the grievor had overstepped the bounds of acceptable discourse even though he was acting in his capacity as a union representative.
The arbitrator upheld the company’s decision to suspend the grievor without pay for 30 days based on his online conduct.
6. Harassment
Employees’ online activities may constitute harassment or bullying for which an employer may be found liable, possibly also leading to complaints under applicable harassment, workplace violence or bullying legislation.
In McIntosh v. Metro Aluminum Products Ltd., where the owner and manager of a company was found to have sexually harassed an employee by sending her unwelcome text messages with sexual propositions and offensive comments, the B.C. Human Rights Tribunal found both the employee and the company liable for harassment. It also noted that the company did not have a harassment and human rights policy in place, encouraging it to institute such a policy to fulfill its role in safeguarding against inappropriate workplace communications and conduct.
7. Cyber-sabotage
Cyber-sabotage refers to using technology, including social media, to deliberately inflict harm on an organization. Manifestations in an employment context include cyber-bullying, “cybordination,” data theft and data destruction.
In the Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518 case cited earlier, two employees made a number of Facebook posts in which they made derogatory comments about their employer and suggested violence.
The labour relations board found that the Facebook comments were “offensive and egregious” and justified “proper cause.” The Ontario Superior Court of Justice has also held, in Leduc v. Roman, that a user sharing information by way of Facebook does not have “a serious expectation of privacy.”
To mitigate all of these risks, employers should consider implementing policies to address off-duty conduct relating to social media and confidential information, including the following:
- reminding employees that the employer monitors online communications;
- reiterating the employee’s duty of loyalty to the employer;
- reiterating policies on harassment, intellectual property, IT/computer use, conflicts of interest and privacy;
- prohibiting employees from using company-owned resources for social networking or blogging while at work or from posting material that may violate the privacy rights of other employees, including photographs or videos taken at work or company social events; and
- warning employees that any breach of the policy may result in discipline up to and including termination.
Employees’ increased use of social media presents new legal challenges, including employer vulnerabilities in the human rights, privacy and workplace safety contexts. However, the law has adapted to this new landscape and has affirmed the employer’s right to discipline employees who—by virtue of their online conduct—have a negative impact on the employment relationship, the employer’s legitimate business interests or reputation, and the privacy or safety of employees.
Lisa C. Cabel is a partner with Borden Ladner Gervais (BLG). lcabel@blg.com (with files from Maria Gergin, BLG articling student)
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