Outlines recent developments and emerging issues/problems in the misuse of technology, smartphones, and social media in the workplace.

1. Location:
Osgoode Professional Development
Osgoode Hall Law School, York
University
1 Dundas Street West, 26th Floor,
Toronto, ON M5G 1Z3
Date:
April 20, 2015
Managing Employment Law
Issues in the Digital Age
by Stuart Rudner &
Matthew P. Sammon

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Matthew P. Sammon
Lenczner Slaght Royce Smith Griffin LLP
Tel: +1 416 860-3057
Email: msammon@litigate.com

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Why Should We Be Concerned About Misuse?
• Lost productivity
• Inability to Manage
• Corporate liability
– Harassment
– Copyright
• Damaged reputation
– Lost customers
– Lost shareholders
– Share devaluation
• Ownership of Social Media Accounts

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Why Should We Be Concerned About Misuse?
(cont’d)
• Not just “desktop issue”
– Laptops
– tablets
– Smartphones
• 24/7
• On duty
• Off duty

5. Employees Gone Wild
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6. Online Request for Marijuana
Mr. Lube employee:
“Any dealers in Vaughan wanna make a 20sac chop? Come to
Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to
close.”
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7. Insulting Potential Customers
Ontario Hockey League Ref:
“Soo Saint Marie, two words, Slim Pickens. #noteeth #hicktown #allfaties."
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Insulting the Dead
• Teenage victim of bullying commits suicide
• Facebook memorial
• Individual posts: “Thank God this b---- is dead”
• He and his employer are readily identifiable
• Just cause for dismissal?

9. Bashing Residents & Managements: Chatham-Kent
(Municipality) v. National Automobile, Aerospace,
Transportation and General Workers Union of Canada
(CAW-Canada), Local 127 (Clarke Grievance)
 Grievor was a personal care giver at a home for the aged
 Published resident information and pictures without resident consent on
personal blog
 Made inappropriate comments about residents in her care
 Expressed her displeasure with some of the decisions made by
management who she identified by first name and initials
 Result: Discharge Upheld
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10. Workplace Harassment & Social Media –
Overview:
• The evolution of social media has created a further environment for
workplace conflict.
• The disgruntled employee may now use social media to disseminate
angry or defamatory remarks regarding a co-worker or the employer
itself to a broad audience in real time.
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11. Examples
• An employee post threatening remarks on his Facebook page about a co-
worker:
• “If somebody mentally attacks you, and you stab him in the face 14 or
16 times.., that constitutes self-defence, doesn’t it???”.
• An employee uses racist and sexist language to describe a co-worker on a
personal blog;
• An employee who makes sexualized comments regarding a co-worker
though his Twitter account.
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12. New Legal Issues:
• The issue: do employers have an obligation to police or regulate the
activities of their employees with respect to social media to prevent
harassment or defamation between co-workers?
• Recent cases in the labour and human rights context suggest that
social media harassment or defamation between co-workers may
constitute “workplace harassment” if there is a sufficient nexus
between the social media communications and the workplace.
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13. New Legal Issues:
• Employers may well have an obligation to take steps to investigate
and address complaints of workplace harassment or defamation
through social media.
• A failure to do so could give rise to viable claims for constructive
dismissal.
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14. Law of Constructive Dismissal
Constructive dismissal can occur in two situations:
• where an employer makes a unilateral and fundamental change to a term or
condition of an employment contract without providing reasonable notice
the employee; and
• where the employer’s conduct amounts not repudiation of the entire
employment relationship through the employer’s conduct, e.g. the employer
engages in a pattern of hostile, aggressive, profane, rude, demeaning and
intimidating conduct towards an employee. The test for such repudiation is
objective and may not be lightly applied.
• Shah v. Xerox Canada Ltd. [2000] O.J. No. 849 (C.A.) at para. 8, affirming
[1998] O.J. No. 4349 (S.C.J.).
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15. Constructive Dismissal and the Poisoned
Work Environment
• Since Shah, there has been a developing line of cases regarding the
employer’s obligation to avoid or prevent a “poisoned work environment”.
• Courts have expanded the principles in Shah to impose liability for
constructive dismissal on employers who fail to prevent the harassment of
an employee by a co-worker, where such harassment is ongoing,
egregious, and the employer takes no action in the face of it.
• E.g. Stamos v Annuity Research & Marketing Service Ltd (2002), 18
CCEL (3d) 117 (Ont SCJ)
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16. Bill 168
• There is now a statutory duty to address and remedy harassment under the
Occupational Health and Safety Act. Bill 168 came into effect on June 15,
2010.
• The Act require employers to create policies to address and prevent
workplace violence and harassment.
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17. Constructive Dismissal and the Poisoned
Work Environment
• The Act 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”.
• The workplace harassment policy must include measures and
procedures for workers to report incidents of “workplace harassment”
to the employer or supervisor, and to set out how the employer will
investigate and deal with incidents.
• See sections 1, 32.0.1, 32.0.6, Occupational Health and Safety Act,
R.S.O. 1990, c. 0.1
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18. Workplace Harassment Through Social
Media
• Conflicts which are rooted in the workplace are now being waged on the
internet, through social media and other means.
• While such communications may be highly disruptive to relationships and
morale in the workplace, the communications do not occur inside the
“workplace” per se, since they are posted on servers accessible through the
internet, and may be, and often are, posted after work hours.
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19. Workplace Harassment Through Social Media
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· It is not clear that defamatory or harassing postings on social media amount
to “harassment” in the workplace.
· However, recent cases in the labour and human rights context suggest that
defamatory or harassing comments in social media between co-workers may
amount to workplace misconduct and harassment, where there is a sufficient
nexus between those communications and the workplace.

20. Workplace Harassment Through Social Media
20
Taylor-Baptiste v Ontario Public Service Employees Union [2012]
OHRTD No 1336
o Employers have the right to discipline employees for “actions
they take in cyberspace”
o Where these actions are held to be “part of or an extension of the
workplace”, they may be subject to the protections outlined in the
Human Rights Code, including the right to a workplace free from
harassment.

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Alberta v Alberta Union of Provincial Employees [2008] AGAA No 20.
o Employee terminated because of a personal blog, on which the employee
made disparaging remarks about her co-workers, her supervisors, and the
work environment.
o The Labour Board held that “[…] in expressing contempt for her
managers, ridiculing her co-workers, and denigrating administrative
processes, [the employee] engaged in serious misconduct that irreparably
severed the employment relationship, justifying discharge.”
Workplace Harassment Through Social Media

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Lougheed Imports Ltd. (c.o.b. West Coast Mazda) (Re), [2010] BCLRBD
No 190
o British Columbia Labour Relations Board upheld a decision by an
employer to terminate an employee on the basis of “offensive,
insulting and disrespectful comments about supervisors or
managers” posted on the employee’s Facebook account.
o The Board concluded that the Facebook postings were “akin to
comments made on the shop floor” and agreed that their nature and
content could not be excused as a “momentary aberration” on the
part of the employee.
Workplace Harassment Through Social Media

23. Workplace Harassment Through Social Media
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Collectively, these cases suggest that:
o defamatory or harassing statements made by employees on social
media sites or personal blogs may be grounds for discipline or
dismissal, where such statements target co-workers or the employer
or otherwise significantly interfere with the workplace;
o the employer’s general obligation to provide a workplace free from
harassment and discrimination may extend to conduct by its
employees in social media or other online forums, such as Facebook
or personal blogs.

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Discipline & Dismissal

25. Dismissals for Just Cause
• Capital Punishment of Employment Law
• Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant circumstances
 Proportionality is guiding principle – “punishment must
fit the crime”
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Can You Discipline for Off-Duty Conduct?
• Generally, what you do on your time is your business
• But not if
– The conduct renders the employee unable to perform his duties
satisfactorily.
– The conduct interferes with the efficient management of the operation
or workforce.
– The conduct leads to a refusal or reluctance of other employees to work
with him.
– The conduct harms the general reputation of the Employer, its product
or its employees.

27. The Contextual Approach
• Employer must consider all circumstances, not just alleged
misconduct
• Length of service
• Disciplinary history
• Nature of position
• No absolute rules
• Same set of facts can yield different results
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28. The Importance of the Investigation
• Investigate first
• Ensure fairness, objectivity, thoroughness
• Give opportunity to respond
• Often, employee response is critical factor in determining
appropriate discipline
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Post-dismissal
• Duty to mitigate
– have to look for new work
– If find new work, former employer’s obligations reduced
• Learn when individual has mitigated
• Use social media to monitor mitigation
– LinkedIn
• Log and share job opportunities

30. Policies
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• Sensible for employers to have written policies addressing the use of
social media or personal blogs by employees, which describes in
detail the employer’s expectations with respect to employee’s use of
social media, personal blogs or similar media.
• Workplace harassment policies should specifically refer to online or
social media harassment as a proscribed form of harassment which
will be subject to investigation and progressive discipline.

31. Thank You.