Can co-workers get away with hurtful social media posts?

Can co-workers get away with hurtful social media posts?

Managers and team members walk a blurry line between likeability and strict rules of conduct. We all want to be liked and respected. And sometimes a person’s attempt to be likeable and funny turns dark and results in hurtful behaviour – both in person and online on social media.

“The Humor Gap,” an article in Scientific American, describes what some people believe to be a gender difference between the way humans experience verbal social interactions. “Humor,” the writer notes, “is as complicated and evolved as language. It can be a weapon used to alienate, and a means to communicate interest and intelligence.” Social media posts are potentially potent weapons. A person who engages in such conduct is a “cyberbully.” 

Anyone can be a target of cyberbullying and be seriously hurt by it. Statistics Canada reports that in a 2014 survey of teens and young adults, about 17% of the respondents said they had experienced cyberbullying or cyberstalking. With the big increase in the use of WiFi and digital devices to communicate with co-workers, family, and friends, cyberbullying has increased.

Cyberbullying described

Cyberbullying occurs when one person uses a digital device — such as a computer or smartphone — to embarrass or humiliate another person. In its 2014 survey, Statistics Canada defined cyberbully to include:

• receiving threatening or aggressive emails or instant messages (either as the sole recipient or as part of a group)
• being sent or having pictures posted that were embarrassing or made the respondent feel threatened
• having one’s identity used to send out or post embarrassing or threatening information

A US government website describes various digital media a bully may use:

• text/SMS messages
• email
• online chatting
• online posting photos
• apps on laptops and mobile devices (e.g., TikTok, a video-sharing app)
• social media (e.g. Facebook, Instagram, Snapchat, Twitter)
• online forums (chat rooms, message boards, e.g., Reddit)
• online gaming communities

This malicious behavior includes “sending, posting, or sharing” content which is:

• negative
• false 
• mean-spirited
• personal/private

Cyberbullying can have serious emotional consequences

Researchers who studied workplace in-person bullying found that victims suffered physical and mental health problems affecting work performance. The ability to spread damaging information through social media has drastically increased that potential for harm. Unlike face-to-face remarks, malicious comments posted on social media have the potential to reach a global audience, are difficult to delete, and remain available for viewing for a long period of time. 

An important distinction between workplace bullying and other forms of cyberbullying is the imbalance of power relationships in an employment situation and fear of losing a job by coming forward to report the harmful conduct.

Some commentators believe the increase in remote work has diminished empathy among co-workers. This lack of empathy could be responsible for an increase in cyberbullying. If the targeted person is isolated from social supports, the emotional consequences could be even more serious. 

Cyberbullying can harm your reputation

It’s difficult to delete social media content, especially when entered by a hostile party. Words typed carelessly into the “internet etherspace” spread far beyond the poster’s physical environment. The content exists as a public record of private life. A person’s opinions, beliefs, and activities falsely reported by a bully can turn off employers, business associates, and friends. Reputation is at stake. 

How the law protects workers from cyberbullying

No employee, whether a manager or team member, should be the subject of employment-related cyberbullying. Fortunately, the law offers cyberbully victims a means of redress. 

The provincial laws that regulate roughly 80% of Ontario workplaces and address workplace harassment and bullying include:

• Employment Standards Act
• Occupational Health and Safety Act (OHSA)
• Human Rights Code
• Criminal Code

Federal laws, including the Canada Labour Code, regulate about 20% of Ontario workplaces (think banks, federal government services, telecommunication companies etc.) and offer similar protections for harassment and bullying. 

There are a number of ways victims of cyberbullying may be able to take legal action. The choice of legal remedy depends on the particular facts of each case and the outcome sought.

The Duty to provide a safe workplace

The duty to provide a safe workplace covers most employers, who are expected to exercise “due diligence” in compliance. Due diligence is a legal standard. In lay terms, it means an employer must take reasonable precautions to prevent harm. What it is “reasonable” to expect from an employer depends on the risks associated with a particular workplace environment. 

The OHSA law imposes duties on employers, constructors, supervisors, owners, suppliers, licensees, officers of a corporation, and workers, among others. It has workplace violence and workplace harassment provisions, which state that violence and harassment “may originate from anyone the worker comes into contact with inside the workplace, such as a client, a customer, a student, a patient, a co-worker, an employer, or a supervisor. Or the person may be someone with no formal connection to the workplace, such as a stranger or a domestic/intimate partner, who brings violence or harassment into the workplace. A continuum of inappropriate behaviors can occur at the workplace. Employers need to recognize and address these unwanted behaviors early because they could lead to workplace violence.” 

OHSA requires employers to “prepare policies with respect to workplace violence and workplace harassment and review them at least once a year” as well as “set up and maintain programs to implement the workplace violence and workplace harassment policies.” Skills training that employers can implement to recognize and prevent dangerous situations is described in the Ministry of Labour’s publication, Understand the law on workplace violence and harassment.

Defamation Law

Defamation law covers reputational damage. Where the bad actor makes verbal malicious comments in unrecorded speech or in a live broadcast, the defamation is called “slander.” On the other hand, remarks causing damage to a person’s reputation which appear in an e-book or website may enable a victim to pursue a claim under the law of “libel.” Although defamation claims are not typical in employment law situations, a defamation claim may be proper and relevant in some circumstances based on the person being defamed. 

Privacy Law

Privacy law is an important consideration when a person has suffered damage due to breaches of their private information. While there is no specific legislation in Ontario concerning workplace cyber harassment, judicial decisions related to privacy law may be relevant. 

Common Law

The common law generally imposes many legal duties on workers and the workplace and may offer remedies when a person has suffered cyberbullying. Some common law doctrines that may apply in cyberbullying situations include constructive dismissal (if the Employer possibly at blame for creating or enabling a toxic workplace) and intentional infliction of emotional suffering.

Consult a professional

The team at Advocation understand Ontario employment laws and can advise you about your rights in the workplace. Contact us today to schedule your consultation.