In a recent case the Ontario Human Rights Tribunal (the
"Tribunal") found that a facebook posting about a
co-worker's Mexican heritage was prohibited workplace
harassment under the Human Rights Code (the "Code").
The facts are straightforward. The Applicant, Oscar Perez-Moreno
worked at a Golf Resort as a manager. One of the employees who
reported to him was the Respondent, Danielle Kulczycki. After being
disciplined by Mr. Perez-Moreno, Ms. Kulczycki went on facebook to,
presumably, 'let off some steam'. She posted one comment
calling Mr. Perez-Moreno a "dirty Mexican" and also
posted the following message to co-workers: "now the Mexican
is not going to give me anything".
As the Respondent did not participate in the hearing, the
Tribunal deemed all of the allegations true and accepted by the
Respondent. The Tribunal then found that the postings related to a
workplace incident and concerned the Applicant's race, place of
origin, ancestry and citizenship. The Tribunal, citing the
definition of harassment in the Code, stated that the posting was
"vexatious" and that "the respondent knew or ought
reasonably to have known her comments were unwelcome".
As a Remedy, the Tribunal ordered that the Respondent undergo
human rights training.
"Take-Aways" for Employers
The Tribunal in this case confirmed a very important principle
– postings on the internet, that relate to the workplace
may constitute harassment under the Code. Of course, on-line
postings must still relate to a prohibited ground of discrimination
(e.g. race) under the Code. The on-line postings must also meet the
Code's definition of harassment – they must be
"vexatious" and known to be unwelcome (or ought
reasonably to be known to be unwelcome). The Tribunal's
case-law demonstrates that this is not a difficult standard to meet
(note: before the Ministry of Labour the standard is even easier to
meet by a worker given that harassment does not have to be linked
to a prohibited ground of discrimination under the Occupational
Health and Safety Act).
While the employer was not named in this case, it is important
to stress that employers can be held responsible for the harassment
of staff, whether that harassment occurs in-person or on-line.
Employees – especially younger ones – will use social
media. They will likely "friend" their co-workers on
facebook. They will likely do this during working hours. While
harassment training is important, this will not be sufficient.
Employers should seriously consider a social media policy
that bans facebook at the workplace, or, at the very least,
prohibit comments (and pictures) relating to the workplace. This
will go along way to minimizing the risk of on-line workplace
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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