It's time for the second instalment in our three-part series on employment law lessons learned from watching Netflix's Selling Sunset. As always, there are spoilers ahead, so proceed with caution.
If you are new to this series of articles, we are thoughtfully extracting employment law lessons from the fan-favourite reality TV program, Selling Sunset. The show follows some of L.A'.s most successful women realtors, as they compete with the cutthroat L.A. market and each other.
Workplace gossip: Takeaways
It is no surprise that drama abounds in a televised program featuring an inherently competitive workplace. Much of the most notorious pot-stirring takes the form of savage office gossip. The problem with office gossip is that it tends to leak out and cause interpersonal conflicts among coworkers.
A prime example of this occurs in thrilling episode 8 of season 5 (titled "Karma's gonna get you"), when the women of the office gathered for a lavish British-themed tea party, as you do. The realtors arrived to the party decked out in their finest frilly hats and the tea started pouring – literally and figuratively (for the uninitiated, Urban Dictionary defines tea as gossip or personal information belonging to someone else). It didn't take long for tensions to boil over (pun intended). Soon enough, everyone was shouting over each other and nearly every sentence began, "but you said that she said that – ". Suffice it to say, no one left the tea party lukewarm.
Let this serve as an example: while gossiping about a colleague may be a frequent occurrence, it is not as harmless as it may seem. In addition to the hurt feelings and damaged morale, there are also legal risks associated with workplace tea spilling.
If you choose to share your office gossip with outside parties you could be opening yourself up to a civil claim of defamation. If you suspect that defamation claims might be limited to the world of reality TV, you are mistaken. In Booton v. Synergy Plumbing and Heating Ltd, 2019 BCSC 276 an employer inaccurately indicated to some employees that a former employee had been terminated for theft. Consequently, the employer was required to pay damages for defamation.
To make out a claim of defamation, the following must be shown:
- the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
- the words in fact referred to the plaintiff; and
- the words were communicated to at least one person other than the plaintiff (Grant v. Torstar corp., 2009 sec 61).
The employer in Booton should not have suggested to other employees that the former employee had stolen money when this was not factual. Generally, employees are not entitled to the details of a co-worker's discipline or termination. Further, employers should not spread rumours or participate in (or condone) gossip regarding the misconduct of employees, including former employees.
An employer has a duty to provide a safe workplace for employees. Gossip may constitute bullying and harassment, contrary to B.C.'s Workers' Compensation Act and other occupational health and safety legislation across Canada. Bullying and harassment can arise even when a comment is not made directly to the target employee, but the target employee hears about it later from a third party.
In A1800359 (Re), 2019 141606, the Workers' Compensation Appeal Tribunal considered derogatory comments made by a manager about a worker behind her back. In this case, the comments were not enough to establish bullying or harassment. The fact that the worker did not hear the name-calling directly diminished its potential threatening or abusive impact. Direct name-calling has a more immediate and profound effect than hearing of the name-calling alter the fact from a third person. However, the tribunal did not foreclose the possibility that a similar incident could constitute bullying and harassment under different circumstances.
Employment lawyers can build a busy practice conducting workplace investigations into bullying and harassment allegations. In our experiences, many complaints of bullying and harassment include allegations of gossip. Such complaints often lead to costly investigations and complaints to workers' compensation bodies.
3. Constructive Dismissal
In Bovin v. Over the Rainbow Packaging Services Inc. 2017 ONSC 1143, constructive dismissal damages were awarded where an employer was found to have created a poisoned work environment. Gossip can be a factor in creating a hostile or poisoned work environment.
The test for determining whether a poisoned work environment amounts to constructive dismissal is articulated in Shah v. Xerox Canada Ltd.  O.J. No. 4349:
The test ... is whether the conduct of the manager was such that a reasonable person in the circumstances should not be expected to persevere in the employment.... If the employer's conduct in the particular circumstances passes so far beyond the bounds of reasonableness that the employee finds continued employment to be intolerable, there will, in my view, be constructive dismissal whether or not the employee purports to resign.
This test is not applied lightly and certainly does not apply in all instances of bullying and harassment. Justice Elizabeth Arnold-Bailey found in Danielisz v. Hercules Forwarding Inc. 2012 BCSC 1155 that the employee was engaged in "poisoning the working environment" as much as she was the targeted employee. Consequently, the court dismissed the employee's constructive dismissal claim.
Previously printed in The Lawyer's Daily, a LexisNexis Canada publication.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.