Two seemingly unrelated, yet interesting, events occurred this month that made me think about occupational health & safety. Of course, my friends and family say that the evening breeze will cause me to think about some employment law related risk! Anyway—what do you suppose is the commonality between the First Reference 12th Annual Ontario employment law conference and the Stanley Cup playoffs?
It was my privilege to attend the former and my horror to witness the mayhem that occurred in the streets of beautiful Vancouver following the final game of the latter. Among all of the media, including social media, attention that followed the Vancouver riots was an article published by thestar.com about people being fired or losing commercial endorsements after being identified rioting in social media generated photographs. There are hundreds of ongoing online debates on the merits of being fired for off-work behaviour.
The question of whether I can be fired for what I do away from work is a complicated one to answer and one that requires more time for legal research than what I have available prior to my deadline for this posting. However, Ontario employers must, under certain conditions, provide information to workers about another worker who poses a threat in the workplace due to having a history of violent behaviour. Please see Occupational Health & Safety Act, s. 32.0.5 (3).
“Workplace violence” is defined in the Act as being of a physical nature but “violent behaviour” is not defined thus leaving this determination up to individual judgment. So here’s a question to ask yourself—what are your legal obligations under Ontario law when you see an online photo of your worker committing violent acts?
This brings me to the other interesting event that occurred in the last month—the First Reference employment law conference. Among the many informative presentations was one entitled, “Social networking and internet abuse in the workplace” by Kelly McDermott of Stringer Brisbin Humphrey. Kelly did a great job of educating us on how to legally monitor the online activity of workers and she said something like: Notwithstanding privacy settings [on social media applications] everything posted on the internet eventually becomes public.
I can post a photo online and control access to it with my privacy settings. That doesn’t stop someone from copying that photo and distributing it. Likewise, photos can be snapped on a cell phone and posted on public websites instantly—there is no privacy anymore! Whether you were intended to view a photo or not, what is your legal obligation once you do?
Preventing workplace harassment and the resulting violence that is delivered over the internet in a huge challenge for the twenty first century employer. However, responding to information received via the Internet, whether intentional or not, is an obligation the modern employer must also take seriously.
Andrew Lawson
Learn don’t Litigate
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- Ontario policy on competing human rights - August 8, 2012
- What does the case of Trayvon Martin tell us about racism in Canada? - April 4, 2012
