Further clarity regarding the application of human rights
protections to workplace-related social media postings has emerged
following a recent decision of the Human Rights Tribunal of Ontario
(the "Tribunal"). Specifically in Perez-Moreno v.
Kulczycki,1 the Tribunal found that comments made
by an employee about a co-worker on Facebook constituted harassment
in employment contrary to subsection 5(2) of the Ontario Human
Rights Code (the "Code").
The case emerged after the applicant Oscar Perez-Moreno, a
manager at the Cranberry Golf Resort, intervened in a workplace
argument between two co-workers, including the respondent Danielle
Kulczycki. Two days after the incident, Ms. Kulczycki posted on her
Facebook account that she had been written up at work for calling
Mr. Perez-Moreno a "dirty Mexican". She also indicated to
other employees that "now that Mexican is not going to give me
anything." Understandably insulted by the comments which he
felt were humiliating and damaging to his character, Mr.
Perez-Moreno brought a complaint to the Tribunal citing numerous
protected grounds including race, ancestry, place of origin,
citizenship and ethnic origin. His complaint to the Tribunal also
noted that his son's classmates were aware of the posting and
that this contributed to the severity of Ms. Kulczycki's
The Tribunal upheld the complaint and confirmed that the
protections under the Code extend to workplace-related postings on
the Internet. In communicating her comments on Facebook, Ms.
Kulczycki engaged in what amounted to harassment (defined as
"a course of vexatious comment or conduct that is known or
ought reasonably to be known to be unwelcome") in employment
contrary to the Code. The Tribunal opined that Ms. Kulczycki's
comments were clearly related to an incident that occurred in the
workplace and that she ought reasonably to have known that they
were unwelcome by Mr. Perez-Moreno.
Monetary damages were not awarded in this case because they were
not sought by Mr. Perez-Moreno. However, the Tribunal did order
that Ms. Kulczycki complete the Ontario Human Rights
Commission's online training module. The employer, who was not
a party to the complaint, was also encouraged to consider whether
human rights training might benefit all of its employees.
The Perez-Moreno decision is part of the growing body of law
which confirms the application of the Code and other
employment-related legislation to employees' social media
conduct. While some observers might consider the specific comments
in this case to be at the lower end of the spectrum of concern, the
fact is that the full powers of the Tribunal to fashion appropriate
remedies are in play whenever an employee's (or employer's)
unwelcome conduct constitutes harassment or discrimination under
the Code. With the foregoing principle in mind, employers are
strongly advised to develop and implement appropriate human rights
training as well as a policy that addresses social media use by its
employees. Further, employers are reminded of their obligation
under the OccupationalHealth and Safety Act to
implement a policy that addresses harassment in the workplace.
12013 HRTO 1074 (CanLII)
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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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