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Under the Occupational Health and Safety Act, employers have a responsibility to ensure that their workplace is free from violence and harassment. The Human Rights Code places a further obligation on employers to ensure that employees are free from discrimination and from harassment in the workplace. It is clear that these obligations require employers to monitor and regulate workers’ behaviour while physically at work, but what about workers’ interactions online?

In particular, employees routinely connect with each other through social media, such as Facebook, Twitter and text messaging. Does an employer have the power to impose sanctions for harassing or discriminatory postings made on social media sites by off-duty workers? If so, is there an obligation on employers to do so? The answer to both questions depends on the connection between the online communications and the workplace.

The law is very clear that employers have a right to discipline and, where appropriate, dismiss employees for off-duty conduct that is materially connected to the employer’s enterprise. Examples include where employees post disparaging or defamatory remarks about the employer’s business (e.g. Bell Technical Solutions and CEP (Facebook Postings, Re, [2012] OLAA No 481), or about its clients (Wasaya Airways LP v ALPA (Wundels Grievance) (2010), 195 LAC (4th) 1). It is obvious that this type of off-duty conduct is materially linked to the employer’s enterprise, because such actions negatively affect the employer’s image and, consequently, its interests.

With respect to online postings between or about fellow workers, the connection to work is less clear: are the individuals still engaged in a work relationship, or is the relationship more personal? As what point is the employer able to regulate, and sanction, these communications? The answer appears to be that, where these communications impact on employees’ work life employers are permitted to interfere.

In Tenaris Algoma Tubes Inc and USWA, Local 9548 (D), Re, (2014), 119 CLAS 57, a recent arbitral decision, the arbitrator upheld the dismissal of an employee who had posted sexually harassing comments on Facebook regarding a fellow worker. Other employees, including the posting’s subject, had seen the posts, which were visible to anyone on Facebook. The arbitrator held that the griever’s Facebook comments were not “off duty” conduct because they were directed at poisoning the victim’s work environment.

The arbitrator recognized the employer’s obligation to provide a safe workplace environment under Ontario legislation. He noted that the employer was correct in finding that the griever’s actions had contravened the employer’s policies against harassment and violence in the workplace. In the circumstances of this case, the employer was not only within its authority to dismiss the griever, but it effectively had an obligation to do so in order to meet its duties under the Human Rights Code, the Occupational Health and Safety Act, as well as the collective agreement.

Employers are encouraged to include policies with respect to employees’ use of social media both during and outside of work hours, in order to provide guidance to employees and maintain a healthy workplace environment. On the other hand, employees need to remember that their conduct online can have severe and lasting consequences. Follow the old adage: If you have nothing good to say, don’t say it.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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