Malcolm MacKillop's Blog, page 14

Social Media and the Workplace

The relationship between social media and confidentiality in the workplace is a gray area for many employers. These social media sites are public. Confidentiality agreements are put in place to provide clarity on issues regarding what employees post online.

Tremblay v 1168531 Ontario Inc., 2012 HRTO 1939

In 2012, a decision made by the Ontario Human Rights Tribunal found that an employee’s multiple Facebook posts regarding her settlement breached a confidentiality provision of a settlement agreement. The employee alleged that the employer breached the settlement by refusing to pay the amount owing under the settlement. The employer then filed an application for contravention of settlement that alleged the employee breached confidentiality in the settlement agreement by posting comments on Facebook about the court case.

The employee’s postings online were comments regarding receiving money after mediation. One post stated, “Sitting in court now and _______ [blank in original posting] is feeding them a bunch of bullshit. I don’t care but I’m not leaving here without my money…lol.”. The employee also posted, “Well court is done didn’t get what I wanted but still walked away with some…”.

After the mediation, the employer was informed of these Facebook posts. After seeing the comments, the employer chose not to give the employee the amount agreed to during the settlement. The employee did not deny that she posted the comments on Facebook but argued that there was no proof that she was talking about her employer and because she did not specify an amount there was no breech of the settlement.

The Tribunal agreed the employee did breach the confidentiality provision of the settlement. The Tribunal also found that Facebook is public. However, the employer still owed the amount agreed to during the settlement, plus interest due to the delay in paying the settlement amount.

Takeaways from This Case

1.The courts will find Facebook to be public when handling issues of the online posting of settlement details.

2.When faced with a breach of any provision of a settlement agreement, do not take matters into your own hands. In the above case, delaying payment left the employer worse off as the employer was ordered to pay the settlement amount, plus interest.

3.Courts and tribunals will strictly enforce confidentiality provisions, even when a breach is considered trivial. Employers and employees alike are susceptible to potential claims for breaches of confidentiality.

Accommodating Mental Health Disabilities in the Workplace

In recent years, there has been a societal shift towards increasing the dialogue on issues of mental health and reducing the stigma often associated with mental health issues. It, therefore, comes as no surprise that addressing mental health issues in the workplace has become an increasingly important issue for employers. When addressing issues of mental health in the workplace, employers should be aware of the Ontario Human Rights Commission’s (“OHRC”) recently implemented policy which addresses discrimination based on mental health disabilities and addictions (“Policy”). The Policy, which was published in 2014, provides guidance on the application of the Ontario Human Rights Code (“Code”)  specific to mental health disabilities and addictions.

Policy Details

The Policy was intended to provide information to those seeking to understand the Code mandated rights and obligations applicable to mental health disabilities and addictions. It was created to reflect and complement legislation and jurisprudence already in place. The policy, while not binding on courts, is likely to be referred to by courts when deciding issues with respect to the Code.

As with physical disabilities, the Code requires employers to accommodate employees with mental health disabilities and addictions up to the point of undue hardship. The Policy outlines that many impairments such as anxiety, panic attacks, depression, alcohol dependence or addiction have been recognized as disabilities under the Code.

Principles Informing the Duty to Accommodate

The Policy also sets out three main principles which inform the duty to accommodate, and which employers should consider when determining how best to accommodate employees with mental health disabilities or addictions:

1. Respect for Dignity – Accommodation should be provided in a manner that respects an employee’s dignity. The Policy notes that privacy, confidentiality, comfort, individuality, and self-esteem are all important factors to consider in ensuring that the accommodation you provide to an employee respects the employee’s dignity. For example, if an employee requests a change to their work schedule in order to attend a weekly therapy session related to their mental health disability, ensuring that employee’s dignity is respected might require an employer to grant the request and to keep the request and the reasons for the change to the employee’s schedule confidential.

2. Individualization – The Policy also reiterates that accommodation is not a “one size fits all” process; employers must accommodate each employee based on their individual needs. For example, while one accommodation approach might work for one employee suffering from depression, another employee suffering from depression may require a different approach to accommodation.

3. Integration and Full Participation – Employers should develop accommodations that maximize an employee’s integration and full participation in the workplace. The Policy outlines that existing barriers to an employee’s full integration should be removed, unless it is impossible to remove them at a given time. For example, an employee with attention deficit disorder who works in a cubicle area that gets noisy at certain times might need access to a more quiet work space at times, however, the employee should be allowed to work at their regular cubicle when comfortable doing so.

Keeping these three principles in mind, it is important to understand that both the employer and the employee have responsibilities with respect to the accommodation process. As outlined in the Policy, employers must choose the most appropriate accommodation for the employee; however, if there is more than one appropriate way to accommodate an employee, then the employer can choose the less expensive or least disruptive option. Employees are not entitled to their preferred method of accommodation and are responsible for co-operating with their employers during the accommodation process. Moreover, employers are expected to accept employee requests for accommodation in good faith, keep records of accommodations, and maintain confidentiality throughout the accommodation process.

Key Takeaways

As the Policy reiterates, employers must continue to accommodate employees with real or perceived mental health disabilities or addictions in exactly the same way that they are required to accommodate those with physical disabilities. Determining the appropriate accommodation for an employee with a mental health disability or addiction should be informed by the principles outlined in the Policy, and will require both the employer and the employee to engage in an open dialogue throughout the accommodation process.

In a Poisonous Work Environment?

Employee claims that include allegations of a poisoned or toxic work environment have become increasingly common in recent years. One such claim, General Motors of Canada Ltd. v. Johnson, recently made its way to the Ontario Court of Appeal. This gave Ontario’s highest court the opportunity to provide some much needed clarification on this area of law. 

General Motors of Canada Ltd. v. Johnson (“General Motors”)

In General Motors, Yohan Johnson (“Johnson”) claimed that he had been constructively dismissed from his employment at GM due to a racially poisoned work environment. Johnson, who had worked for GM for over five years as a production supervisor in the body shop, took a medical leave from work in 2005 due to stress. He claimed that he was disabled because of racial discrimination in the workplace.

Specifically, Johnson alleged that another employee had refused to receive training from Johnson because Johnson was black. The company completed three investigations into this allegation of discrimination and each time concluded that the employee’s conduct was not racially motivated.

Johnson remained on medical leave for two years. He then attempted to return to work at GM but requested a different position. GM offered him a new position in the paint shop but Johnson refused to return to work because he felt as though he was still vulnerable to discrimination in this position. GM took Johnson’s refusal to return to work as a voluntary resignation and Johnson brought a claim against GM for constructive dismissal.

At trial, the court found that Johnson was a victim of racism that poisoned his work environment and resulted in his constructive dismissal. The trial judge found that GM failed to take Johnson’s complaint seriously and failed to conduct a reasonable and comprehensive investigation into his complaint. Johnson was awarded $160,000.00 in damages.

However, GM successfully appealed the trial court’s decision. The Ontario Court of Appeal allowed GM’s appeal, finding that the evidence did not support the trial judge’s conclusion that there had been racially motivated conduct. The Court of Appeal also found that there was no direct evidence of racism towards Johnson by anyone at GM and that the trial judge fundamentally misapprehended the evidence. As a result, Johnson’s claim against GM was dismissed.

Key Takeaways

There are a few key takeaways from the Court of Appeal’s decision in General Motors that human resource professionals should make note of.

First, the Court of Appeal confirmed that in order for a workplace to become poisoned there must be “serious wrongful behavior”. This behavior might include discrimination, bullying, threats, or harassment.

In addition, aside from particularly egregious single incidents, the wrongful behavior must be persistent or repeated in order to create a poisoned work environment. Therefore, any wrongful behavior should be appropriately addressed at the outset, as allowing it to continue may result in a finding that a workplace has been poisoned.

Finally, the court will not focus on the employee’s subjective feelings or beliefs about the work environment in determining whether a workplace has been poisoned and whether an employee has been constructively dismissed. Rather, the court will consider whether there is evidence which, to an objective reasonable bystander, would support the conclusion that a poisoned work environment had been created and whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. If the court finds that an employee is being subjected to a poisonous work environment that has made his or her continued employment intolerable, this will amount to a constructive dismissal.

Can Employers Monitor Your Work Computer?

The issue of privacy on computers, that are used in a professional work environment, has become a discussion where legal parameters are regarding the limitations of personal and professional use. There are situations that arise within the legal system in which the courts must determine the lines of personal privacy of employees on work-supplied computers.

 

The Situation

In R. v. Cole, 2012 SCC 53 (“Cole”), A high school teacher, Mr. Cole was charged with possession of child pornography. The school’s computer technician was performing regular maintenance on school computers when he discovered nude photographs of an underage female student in another student’s school email account. Mr. Cole saved these images onto his school supplied laptop’s hard drive.

Mr. Cole’s laptop information was copied to a disk by the technician and then notified the school principal regarding the situation. The next day, law enforcement seized the copied disks and the physical laptop. The police officer who was involved in the investigation and who also took the computer did not obtain a warrant to search and seize the hard drive or the disks.

 

The Decision

The Supreme Court found that Mr. Cole had a reasonable expectation of privacy to the information stored on the hard-drive and the disks, even though they were owned by the school. Since he used his workplace computer to store personal information, financial records, and internet browsing, the teacher had demonstrated both a direct interest in and a subjective expectation of privacy in the information stored on his laptop. The Supreme Court decided Mr. Cole’s subjective expectation of privacy to this information was objectively reasonable.

The Supreme Court held that Mr. Cole’s subjective expectation of privacy was objectively reasonable because the subject matter of the police search fell close to a biographical core of personal information about him. A biographical core of personal information is information which an individual in a free and democratic society would wish to maintain and control from dissemination to the state, including information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The information stored on the laptop was exactly this kind of information, as it revealed the details of Mr. Cole’s personal and financial situation as well as his interests and propensities. The information on the laptop, therefore, weighed in favour of the objective reasonableness of Mr. Cole’s expectation of privacy.

The Supreme Court found that the police had violated Mr. Cole’s reasonable expectation of privacy in conducting an unreasonable search and seizure of his laptop, contrary to the Charter of Rights and Freedoms (the “Charter”). Ways to ensure that problems like this do not arise in the workplace would be to place clear policies regarding the use and limitations of employer-issued technology.

 

This is an abridged section from the book, “Employment Law Solutions” by Malcolm MacKillop, Hendrik Nieuwland, Meighan Ferris-Miles.