A. INTRODUCTION
With the popularity of social media sites, courts and
tribunals continue to deal with disputes and claims regarding the harm that may
be caused by online postings. The latest case in this developing area of law
is the Ontario Human Rights Tribunal (the “Tribunal”) decision in Perez-Moreno
v Kulczycki. In this application, the Tribunal dealt with the issue of an employee’s
disparaging statements regarding a co-worker outside of the workplace, specifically
on a virtual Facebook wall. The Tribunal found the respondent worker liable to
the applicant co-worker for breach of the workplace harassment provisions of
the Ontario Human Rights Code (the “Code”). This Charity Law Bulletin discusses this
decision and its implications for charities and not-for-profits as employers.
B. THE FACTS
Oscar Perez-Moreno, the applicant, and Danielle Kulczycki,
the respondent, both worked at the Cranberry Golf Resort. Mr. Perez-Moreno was
the manager of the Resort and Ms. Kulczycki was his co-worker. On August 1,
2012, there was a dispute between Ms. Kulczycki and another co-worker, who was
in a relationship with Mr. Perez-Moreno. Mr. Perez-Moreno intervened in the
dispute, which had occurred in the workplace. On August 3, 2012, Ms. Kulczycki
created a post on Facebook stating that she had been “written up at work”
because she had called Mr. Perez-Moreno a “dirty Mexican”. She also made
derogatory and racial verbal statements to her co-workers about Mr.
Perez-Moreno.
Mr. Perez-Moreno was upset by the derogatory remarks and
felt that they were humiliating and damaging to his character and work life.
He also stated that the remarks affected him emotionally, socially, and mentally.
Since Facebook posts are public postings, his son’s classmate also saw Ms.
Kulczycki’s offensive post. Consequently, Mr. Perez-Moreno filed an
Application under s.34 of the Code, alleging harassment in the workplace
on the grounds of race, ancestry, place of origin, citizenship and ethnic
origin. Ms. Kulczycki was the only respondent to the Application as the
employer was not a named party. Ms. Kulczycki, did not file a Response to the
Application, and was therefore deemed to have accepted all the allegations
against her.
C. THE HUMAN RIGHTS CODE
Under s.5(2) of the Code, every
employee has a right to a workplace environment that is free from harassment
because of one’s race, ancestry, place of origin, ethnic origin, citizenship,
colour, creed, sexual orientation, gender identity, gender expression, age,
record of offences, marital status, family status, and disability. The Code s.10(1) defines “harassment” as a course of vexatious comment or conduct that
is known or should reasonably be known to be unwelcome.
D. THE DECISION
The Tribunal held that the postings and
comments constituted harassment in the workplace contrary to the Code,
as they were vexatious and related to an incident that occurred in the
workplace. The respondent knew or ought reasonably to have known that her
comments were unwelcome to the applicant. The applicant did not seek monetary compensation
for injury to his dignity, but instead requested to have the respondent removed
from the shared work environment. As the employer was not a party, the Tribunal
was not prepared to apply that remedy, because it would have affected the
interests of the employer. Therefore, the Tribunal decided that the respondent
could remain in the workplace, but she must complete the Ontario Human Rights
Commission’s on-line training course within thirty days. It was also
recommended that the employer consider providing human rights training to all its
employees.
E. CONCLUSION
This Tribunal decision demonstrates that
disparaging postings on social media sites, such as Facebook, Twitter and blogs
regarding co-workers could result in liability under the Code. Therefore,
employees must be aware they cannot use these social media sites to vent about
their workplace and co-workers. Employees may consider that what they post on
social media sites is private and will not be subject to review by our courts
or human rights tribunals. Employers should make it clear that that there is no
such immunity, and employee postings may result in negative consequences. Many
employers, including charities and not-for-profits, have developed social media
policies to educate employees about the proper and improper use of social media
in the workplace. The developing case law in this area highlights the
importance of social media policies, both to educate employees and to reduce
the risk of employer liability.
