Traditionally, the personal life of an employee has been just
that: personal. Employers are generally not entitled to pry or take
issue with the manner in which employees conduct themselves outside
of working hours. That said, the private life of an employee may
indeed turn out to be the employer's business in certain
Employees owe a duty of loyalty and faithful service to their
employers which prohibits them from disparaging their employer or
superiors. For the most part, few employers in the past attempted
to enforce their legal right to prevent employees from making a
negative comment to a colleague, or venting to friends about
workplace issues in a social setting. This is no longer the case.
In the era of social media websites like facebook, and the
popularity of person blogs, disparaging comments are easy to prove,
can be widely disseminated to the public, including clients and
customers of the employer, and have the potential to seriously harm
the employer's reputation.
In a decision of the B.C. Employment Standards Tribunal, the
decision-maker upheld a finding that the employer had not violated
the Employment Standards Act when it refused to permit an employee
to return to work after taking a maternity leave (Re: Walder BC
EST#D113/10). The employer was deemed to be justified in
terminating the employer's employment based on her numerous
inappropriate acts of insubordination. This included generally
"badmouthing" her employer on a website.
Similarly, a personal caregiver at a home for the aged was held
to be justifiably discharged from her employment based on comments
made on her blog about her workplace. She referred to management in
derogatory language and complained about the individuals she was
attending to at the home. The union attempted to characterize the
blog as "nothing more than what employees would talk about on
their break". The arbitrator disagreed. The blog was available
to the public and in breach of her confidentiality agreement,
represented conduct unbecoming of a personal caregiver and amounted
to insubordination (Chatham-Kent (Municipality) v. National
Automobile, Aerospace, Transportation and General Workers Union of
Canada (CAW-Canada), Local 127 (Clarke Grievance),  O.L.A.A.
No. 135, Clarke Grievance).
In another labour arbitration decision from Ontario, a pilot for
an airline serving small, mainly First Nations communities was
dismissed for postings on his facebook wall that were insulting
towards the clientele of his employer. The arbitrator referenced
the above case involving a personal caregiver and observed that:
"where the internet is used to display commentary or opinion,
the individual doing so must be assumed to have known there is
potential for virtually world-wide access to those
statements". The grievor employee was found to have created a
circumstance of potential harm to his employer's reputation.
However, discharge was deemed to be an excessive form of discipline
based on certain mitigating factors, including an apology and
otherwise clean record (Wasaya Airways LP v. Air Line Pilots Assn.,
International (Wyndels Grievance),  C.L.A.D. No. 297, Wyndels
The recent decisions indicate that there can be little
expectation of privacy for those publishing comments on private
facebook pages or other social networking sites that are readily
accessible to others and easily re-published for viewing by an
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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