Canadian Employment Law Today

October 16, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT Oct 16 2013.qxp:celt 467.qxd 13-10-04 8:58 AM Page 2 October 16, 2013 Ask an Expert with Tim Mitchell Norton Rose, Calgary Have a question for our experts? Email ■ PRIVACY: Control over employee social media activities Question: How much authority can an employer exercise over what an employee posts on social media on her own time, particularly if the employer's public image is important to its business? What about if the employee specifically mentions the employer or other employees? Answer: The degree of authority an employer can exercise over what an employee posts on social media during her off time depends on a number of factors including -- but not limited to -whether or not the employee is using a computer belonging to the employer, whether that employer has a social media/information technology policy and, of course, what the employee is posting about. This answer focuses on the postings themselves. There must be a nexus or some sort of connection between the posting and the employer/workplace to warrant employer interference. Employers have already started exercising indirect authority over what employees post on social media in their free time by using such postings as evidence to justify termination. In Lougheed Imports Ltd. v. U.F.C.W., Local 1518, the British Columbia Labour Relations Board found that the employer, an automotive detailing and accessory shop, had proper cause to dismiss two 2 employees for comments about their employer on Facebook. The postings included "very offensive, insulting and disrespectful comments about supervisors or managers," "clearly identified and referenced discipline [the employee] received at work," and also contained "damaging comments about the Employer's business." The board found the employees "could not have a serious expectation of privacy when publishing comments on their Facebook websites and therefore the comments are damaging to the employer's business." In Groves v. Cargojet Holdings Ltd., the adjudicator similarly found the employee had "seriously maligned her employer [by] posting insulting, threatening comments about her supervisor, her fellow employees and her workplace on Facebook." The adjudicator concluded that "any reasonable person reading those remarks would interpret them as offensive, disloyal and insubordinate" but, in the circumstances, the employer had just cause to impose discipline but termination was an excessive disciplinary response in consideration of the "evidence overall and the mitigating factors." The mitigating factors, which the adjudicator also referred to in distinguishing Groves from Lougheed, included the "provocation caused by events at the workplace, the absence of appropriate measures taken by her employer when faced with her complaints of harassment, the differential treatment for similar infractions committed by other employees, the transitory nature of her conduct compared to similar cases, the fact the offence was not committed at the workplace and therefore did not breach the workplace violence prevention policy, the nature of Facebook postings compared to website blogs which gave rise to more severe discipline in other cases, and the minimal harm to the employer's reputation." It is becoming more common for employers to implement social media policies setting out clearly articulated rules and expectations with respect to employees' use of social media. These policies should remind the employee of her implied duty of good faith and loyalty to the employer and warn that postings on social media sites that undermine this may be used as evidence to support discipline up to and including termination of employment. The policy should also remind the employees that information posted on blogs and Facebook, as well as other social networking sites, is often publically available and may therefore be accessed by the employer, coworkers and customers. ■ HEALTH AND SAFETY: Employees from different employers at same worksite Question: If one company's employees are performing work on the property of another business alongside employees of the other business, who is responsible for the occupational health and safety of the employees? Answer: As an example, Alberta's provincial occupational health and safety legislation is comprised of the Occupational Health and Safety Act (OHSA), the Occupational Health and Safety Code, 2009 (the OHS Code), and the Occupational Health and Safety Regulation (the OHSR). Pursuant to the OHSA, employers are responsible for the health and safety of workers engaged in the work of that employer, and workers not engaged in the work of that employer but present at the work site at which that work is being carried out. This means that, in general, an employer is responsible for the health and safety of any workers engaged in work on or in its work site, regardless of whether or not they are employed by that specific employer. Issues may arise, however, with respect to who is the true employer in the circumstances. Employer is defined broadly in the OHSA as follows: "employer" means (i) a person who is self employed in an occupation, (ii) a person who employs one or more workers, (iii) a person designated by an employer as the employer's representative, or Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 7

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