MANAGEMENT & HR
Unfortunately, society has become accustomed to hearing tragic stories in the news regarding the consequences of cyber-bullying among Canadian youth – with Reahteh Parsons and Amanda Todd still fresh in our minds. While cyber-bullying among teenagers is well documented, less has been written about a growing issue for Canadian adults.
A Pew Research Centre study of October 2014 shows 40 per cent of adult Internet users have personally experienced online harassment, ranging from name-calling and embarrassment to physical threats, stalking and sexual harassment. A spike in the number of arbitration cases dealing with instances of cyber-bullying proves that the problem is spilling over into the workplace and the number of cases is only expected to increase, along with direction from arbitrators.
The Ontario Occupational Health and Safety Act was amended in 2010 to provide that employers have obligations to prevent and address violence and harassment in the workplace. Many employers are reluctant to be proactive on speaking to employees about the darker side of human behaviour, but it’s important they do so as there are strict penalties for individuals and corporations who do not comply with the OHSA. It’s therefore imperative employers conduct assessments, create policies and programs, and deliver training to all employees about anti-violence and anti-harassment. Penalties for failure to comply with the OHSA include, for individuals, a fine of up to $25,000 and/or imprisonment of up to 12 months and a fine of up to $500,000 for corporations.
In one such example of a criminal record being imposed, the Ontario Court of Appeal, in October 2014, convicted a Ashish Dewan of criminal mischief and criminal harassment after he posed separately as a girlfriend and colleague online and made degrading comments about them. Dewan pleaded guilty and was sentenced to five months time served, a suspended sentence and two years probation for the criminal mischief conviction, and two years probation for the criminal harassment conviction.
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 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 insofar as online communications impact the workplace and, importantly, workplace relationships.
This message has yet to sink in with 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 that emphasize personal use of work IT equipment should be kept to a minimum; elaborate the employer’s right to monitor suspicious activity; and inform employees they can and will be disciplined for improper online conduct that has a “nexus” to work.
Many employees might be reluctant to report comments made outside of the workplace on social media forums for fear of bringing what might seen as a personal issue into work. We encourage workers to voice these concerns and there have been many examples where arbitrators have upheld dismissals in cyber-bullying cases where comments were made outside of work. For example, in Canada Post and CUPE, a postal clerk was dismissed for just cause relating to Facebook posts containing offensive, vulgar and threatening material primarily directed at her supervisors.
The following recommendations to those experiencing cyber-bullying might seem commonsense, but can be easily forgotten when faced with a deeply embarrassing and traumatic situation.
First, do not reply to messages or posts from cyber-bullies and make copies of all such messages or posts (including pictures). Report any concerns to your employer and follow any applicable policies it has. Your co-operation in any employer investigation is crucial in ensuring the cyber-bully is appropriately punished. If the conduct appears to be criminal, do not hesitate to contact the police.
Melanie Warner is a partner in Borden Ladner Gervais LLP’s labour and employment group.
Article by Melanie Warner, BLG, Special to Financial Post | April 28, 2015