because of their race, religion, sex, sexual orientation or any other
prohibited ground under the Ontario Human Rights Code.
It’s important for both employers and employees to be aware of
and understand that there are Criminal Code provisions that can
be used to penalize online bullies, as well. These amended provisions
(embodied in Bill C-13, Protecting Canadians from Online
Crime Act), which criminalize cyber-bullying, came into force in
March 2015 and specifically prohibit the non-consensual publication/
distribution of intimate images online. What someone might
dismiss as a workplace prank might ultimately result in receiving a
criminal record and even time in prison.
In one example of a criminal record being imposed, in October
2014 the Ontario Court of Appeal convicted a man of criminal
mischief and criminal harassment after he posed as his
Have you inadvertently dismissed
an employee?
In a recent decision, the Supreme Court clarified the test
for constructive dismissal. The Court also discussed
employers’ duty of honesty to employees and when
employees may be placed on administrative suspensions.
ex-girlfriend and separately as a colleague online and made degrading
comments about them. He pleaded guilty and was sentenced
to five months in prison, a suspended sentence and two years of
probation for the criminal mischief conviction, and two years of
probation for the criminal harassment conviction.
PREVENTING CYBER-BULLYING
Labour and employment lawyers are often asked about the extent
to which employees can expect privacy with respect to their online
conduct inside and outside of work. The short answer is that employees
should never assume they have an absolute right of privacy
in such communications. The Internet can no longer be considered
a private medium, particularly as online communications
impact the workplace and, importantly, workplace relationships.
This message has yet to percolate down to many employees and,
with potentially criminal consequences, there is a clear and present
need for employers to temper any employee expectations of
privacy. Employers need clear and communicated policies emphasizing
that personal use of work IT equipment should be kept to a
minimum; elaborating the employer’s right to monitor suspicious
activity; and informing employees that they can and will be disciplined
for improper online conduct that has a “nexus” to work.
Employers should explain how employees can address concerns
about improper online conduct and be clear about the potentially
criminal consequences of inappropriate online conduct. It’s critical
for employers to draw up policies that prohibit any disparaging,
harassing and threatening comments directed at the employer, colleagues,
clients/customers, suppliers and competitors, and that
prohibit the disclosure of confidential/sensitive company or personal
information about coworkers.
Additionally, employees should be encouraged to voice their
concerns, and instructed to never reply to messages or posts from
cyber-bullies and make copies of all messages or posts, including
pictures.
With much of our lives existing online, it should be understood
that the manifestations of our online selves are no longer private,
nor do we represent just ourselves. Employers need to communicate
this to their employees and communicate clear-cut policies
surrounding conduct in an online environment. Such policies will
not only prevent workplace cyber-bullying, but will help promote
a safer workplace. n
Melanie Warner is a partner at Borden Ladner Gervais LLP.
technology
Antonov Roman / Shutterstock.com
38 ❚ JULY/AUGUST 2015 ❚ HR PROFESSIONAL