THE QUESTION
I believe that one of my employees is using their company laptop to bully and harass people in public online meetings that have nothing to do with her job or our organization. We have a zero-tolerance policy for harassment and have already warned the employee against this type of behaviour in the past. We have proof that she is attending meetings during work hours. Could our company be held responsible for our employee’s actions if the harassment happens during work hours, using company equipment? What legal grounds do we have to terminate the employee?
THE FIRST ANSWER
Pamela Connolly, lawyer and human resource advisor, Ukrainetz Workplace Law Group, Vernon, B.C.
Your question raises interesting issues about the role our online activities play in our work lives. This employee’s online activities appear to be incompatible with the company’s values and violate company policies.
If the employee is identifiable online as employed with your company, their actions could cause reputational damage or even potential liability if it could be interpreted that they are acting on behalf of the company. Depending on the nature and severity of the online harassment, it could result in civil litigation, Human Rights Tribunal complaints or even criminal charges.
Internally, the appropriate response by the company depends on factors which may elevate or mitigate the seriousness of the misconduct. Some key information you will want to know is if the employee is identifiable online, if there is a workplace policy in place which prohibits or limits personal use of company computers, the nature of the behaviour and similarity to the circumstances of any prior discipline and the employee’s response when questioned about the concerns. There is also the issue of time theft because the employee is attending public meetings and posting comments online when they should be working.
Given the employee’s likely misconduct, the risks occasioned by their online activities and the insight into their character, it sounds like you no longer want the employee involved in your business. Without more information, it is difficult to determine if the company has just cause for dismissal. The threshold for just cause is high and will depend on the context, including the employee’s general work history. However, unless this employee has job security as a result of being in a union or working with a federally regulated organization, they can be dismissed without cause if provided with their legal entitlements.
I suggest you speak with an employment lawyer to determine the best strategy for separating employment. In the meantime, collect all available evidence including screenshots of the online communications, time logs, schedules, policies, discipline records and meeting notes.
THE SECOND ANSWER
Laura Williams, founder and managing partner, Williams HR Law LLP, Markham, Ont.
Online harassment is an unfortunate byproduct of our increasingly digital lives. The law has attempted to keep apace of this prevalent, but particularly modern issue. Just last year, the Ontario Superior Court of Justice created a tort (translated from the legalese: a wrongful act for which courts impose civil liability, primarily through monetary damages) of “internet harassment.”
Whether your company may be held responsible for the employee’s conduct is a highly fact-specific question. Generally speaking, employers may become vicariously liable for the tortious conduct of their employees where the conduct is authorized or condoned by the employer, or is otherwise so connected with acts that the employer has authorized that they may be regarded as “modes” of doing them.
If, for example, the employee has used company accounts to access the public online meetings, or has otherwise held herself out as an agent of the company, and the company becomes aware but takes no action, there is an increased likelihood that a legal decision-maker will find the company vicariously liable for the employee’s conduct. However, if the employee is simply using company equipment to harass others online, it is unlikely that the company will be found so liable - though such conduct is certainly grounds for disciplining the employee.
To determine what legal grounds, if any, exist to discipline or even dismiss the employee for cause, the company should conduct a thorough, impartial investigation into the suspected misconduct and provide the employee with the opportunity to respond to the allegations against them. It is important not to presume the employee’s guilt, no matter the strength of your suspicions. If the allegations are substantiated, the company may rely on any relevant existing policies, such as those related to misuse of company equipment, harassment and time theft (given that the employee is believed to have attended some meetings during work hours) as grounds for imposing discipline on the employee, up to and including dismissal.
If your workplace is unionized, specific considerations may need to be taken into account as a result of the application of terms under a collective agreement.
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Andrea Yu