An employee was recently found to have violated the Human Rights Code (the Code) in part to due to a Facebook post by the employee about her co-worker. Specifically, the employee's post indicated that she had been disciplined by her employer for calling the co-worker a "dirty Mexican". The co-worker filed a complaint at the Human Rights Tribunal (the Tribunal) against the employee alleging discrimination and harassment under the Code. Curiously, the employer was not named in the Application.
Overview
Harassment in the workplace on the basis of race, origin, ancestry and citizenship (among other things) is prohibited by subsection 5(2) of the Code. Harassment is defined as "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome". Unfortunately, the employee-respondent in this case did not respond to the Application or participate in the proceedings. She was accordingly deemed to have accepted the allegations of discrimination and harassment and little analysis was required or undertaken by the Tribunal. However, notably, the Tribunal did confirm that the Code applies to "workplace-related postings on the Internet", including Facebook, even where such activities take place outside of the workplace.
Another interesting aspect of this case is that the applicant did not seek a monetary remedy. Instead, the applicant requested that the Tribunal order the employer to remove the respondent from the workplace. The Tribunal declined to order such a remedy, stating that it did not have the authority to remove the respondent from the workplace, given that it would affect the interests of the employer who was not a party to the Application. Instead, the Tribunal ordered the respondent employee to complete an online training course, "Human Rights 101", within 30 days of the decision.
Our Views
This decision is notable for two reasons. First, it involved an employee making a complaint against another employee for off-duty online conduct, without naming the employer. This is not something we see very often. Second, the decision provides support for an argument employers often try to make – that employees' online conduct should have consequences in the workplace, even where such behaviour is on the employee's own time.
Notwithstanding that this case is an interesting one, the result is somewhat dissatisfying. By not providing a response or attending the hearing, the respondent effectively ignored the claim against her without any substantial consequence. In the end all the respondent was required to do was complete a brief 30-minute on-line training program.
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