Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

Who wants to get fired?

This question is the tag line on the website FireMe! (Warning: language may be offensive to some readers).  FireMe! tracks, categorizes, and estimates the likelihood that a tweet (the 140 character micro-blogs that users publish on Twitter) could get the tweeter fired if his or her boss reads the tweet.  The tweets that are most likely to get a user fired are published on the leader board, which includes such bon mots as “I already hate my job” and “please fire me”.

FireMe! also allows users to enter their own Twitter username to check how likely they are to get fired based on their tweets.  I used that tool to check the Twitter accounts of John Craig (@JDRCLabour) and Kevin MacNeill (@kdmacneill), who are partners and tweeters in our Toronto labour and employment law group.  With a 0% likelihood, both have clearly mastered the art of the appropriate tweet.

According to the developer, the dangers of negative tweets remain abstract, and young and inexperienced users, in particular, could benefit from after-the-fact privacy warnings from websites like FireMe!  To test this theory, FireMe! sent out 4,304 warnings to users who tweeted something that could get them fired.  249 users deleted the offending tweet within two hours of receiving the warning.

Tweets like those featured on FireMe! raise questions about whether employers can and should monitor employee use of social media, and whether employees can be disciplined for the inappropriate use of social media at and away from work.  For answers to these and other questions about social media in the workplace, please watch Rhonda, Christina, Andrew, and me discuss social media in the workplace during last year’s Managing the Workplace seminar series.

Two high-profile cases are testing Canada’s alcohol and drug testing-in-the-workplace laws.  In both, the central issue is the difficult balancing game between the need to ensure a safe work environment, and concerns over an individual’s privacy and human rights.

On Friday, December 7, 2012 the Supreme Court of Canada heard an appeal in the Communications, Energy and Paperworkers Union of Canada (CEP), Local 30 v. Irving Pulp & Paper, Limited case. The employer seeks to have employees undergo random alcohol tests at its mill operations in New Brunswick, to the ire of the union. On Monday, December 10, 2012, a labour arbitration board in Alberta began hearing the CEP’s opposition to Suncor Energy’s attempt to introduce random alcohol and drug testing at its oil sands operations in Fort McMurray for all employees and contractors. (More on this from the CBC: "Companies push for random drug, alcohol testing".)

Generally speaking, the current Canadian law usually restricts such testing to dangerous or safety-sensitive workplaces.  Employers can have policies and practices on employee drugs or alcohol testing so long as they are a bona fide occupational requirement. They can also test employees post-accident or incident where substance abuse may have been a contributing factor.

The Canadian Human Rights Commission (“CHRC”), on the other hand, considers alcohol and drug testing as prima facie discrimination. According to the CHRC’s “Policy on Alcohol and Drug Testing”, past or current alcohol or drug dependence is considered a disability and Canadian law prohibits discrimination on such a basis.

What is being challenged in these two cases is the random testing of employees for the prevention of workplace accidents beyond the “safety sensitive work” context. With Canadian jurisprudence on this aspect of the issue anything but clear, the Irving and Suncor cases are expected to shed some light.

We will continue to monitor and update you on any developments.

It is clear how important it is to conduct a proper workplace investigation.  It is also clear that failing to do so can scuttle an employer’s case for a just cause dismissal, expose an employer to Human Rights Code damages, and, depending on the harm actually suffered, create a risk of aggravated Keays damages as well.

According to a recent decision from the Alberta Court of Appeal, we also now know that an unfair investigation that is biased from the outset can ground an award of punitive damages, which courts reserve for only the most “malicious and high-handed misconduct that offends a court’s sense of decency.”

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What began as a love story turned into a legal battle with a surprising outcome: the Ontario Court of Appeal has now recognized the tort of invasion of personal privacy. After 120 years of academic debate, it is now possible to sue for damages in connection with a breach of privacy. Employers may want to review their privacy policies to avoid any potential liability following this decision.

The case opposing Sandra  Jones to Winnie Tsige garnered much attention last year. Both Ms. Jones and Ms. Tsige were employed by the same bank, although they neither knew nor worked with each other. Ms. Tsige developed a romantic relationship with Ms. Jones’ ex-husband. However, Ms. Tsige claimed she was involved in a dispute with him over child support payments he was making to Ms. Jones, his former wife.

Unknown to Ms. Jones, Ms. Tsige used her position at the bank to access Ms. Jones’ personal financial information at least 174 times over the course of four years. Ms. Tsige was eventually caught and disciplined by the bank, leaving Ms. Jones upset and her confidential banking information destroyed. Even though Ms. Jones had suffered no quantifiable loss, she was awarded $10,000 as “symbolic” or “moral” damages by the Court of Appeal, though the Court made it clear that such damages could go as high as $20,000, depending on the circumstances of the case. 

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Winds of investigatory change are blowing through courts and workplaces.  Less then a decade ago, unfounded complaints made against a manager could justify stripping him or her of supervisory duties and bar an action for constructive dismissal.  These employees had no right to know the details of the complaints against them, nor were they entitled to give a response.  Simply put, procedural fairness received little consideration in the non-unionized workplace.

Now, however, with new human rights and occupational health and safety laws that put employers under a duty to investigate discrimination and harassment claims, courts are becoming aware of improper investigations carried out under the guise of other HR functions.

An Ontario court recently ruled on this topic in Chandran v. National Bank of Canada when it held that a senior manager demoted pursuant to an employee satisfaction survey had actually been constructively dismissed because of, among other things, improper workplace investigation procedures.

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