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.
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
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
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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