Facebook posts about co-worker sanctioned by human rights law 


July 2013

Employment and Labour Bulletin

Further clarity regarding the application of human rights protections to workplace-related social media postings has emerged following a recent decision of the Human Rights Tribunal of Ontario (the "Tribunal"). Specifically in Perez-Moreno v Kulczycki,1 the Tribunal found that comments made by an employee about a co-worker on Facebook constituted harassment in employment contrary to subsection 5(2) of the Ontario Human Rights Code (the "Code").

The case emerged after the applicant Oscar Perez-Moreno, a manager at the Cranberry Golf Resort, intervened in a workplace argument between two co-workers, including the respondent Danielle Kulczycki. Two days after the incident, Ms. Kulczycki posted on her Facebook account that she had been written up at work for calling Mr. Perez-Moreno a "dirty Mexican". She also indicated to other employees that "now that Mexican is not going to give me anything." Understandably insulted by the comments which he felt were humiliating and damaging to his character, Mr. Perez-Moreno brought a complaint to the Tribunal citing numerous protected grounds including race, ancestry, place of origin, citizenship and ethnic origin. His complaint to the Tribunal also noted that his son's classmates were aware of the posting and that this contributed to the severity of Ms. Kulczycki's conduct.

The Tribunal upheld the complaint and confirmed that the protections under the Code extend to workplace-related postings on the Internet. In communicating her comments on Facebook, Ms. Kulczycki engaged in what amounted to harassment (defined as "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome") in employment contrary to the Code. The Tribunal opined that Ms. Kulczycki's comments were clearly related to an incident that occurred in the workplace and that she ought reasonably to have known that they were unwelcome by Mr. Perez-Moreno.

Monetary damages were not awarded in this case because they were not sought by Mr. Perez-Moreno. However, the Tribunal did order that Ms. Kulczycki complete the Ontario Human Rights Commission's online training module. The employer, who was not a party to the complaint, was also encouraged to consider whether human rights training might benefit all of its employees.

The Perez-Moreno decision is part of the growing body of law which confirms the application of the Code and other employment-related legislation to employees' social media conduct. While some observers might consider the specific comments in this case to be at the lower end of the spectrum of concern, the fact is that the full powers of the Tribunal to fashion appropriate remedies are in play whenever an employee's (or employer's) unwelcome conduct constitutes harassment or discrimination under the Code. With the foregoing principle in mind, employers are strongly advised to develop and implement appropriate human rights training as well as a policy that addresses social media use by its employees. Further, employers are reminded of their obligation under the Occupational Health and Safety Act to implement a policy that addresses harassment in the workplace.

1 2013 HRTO 1074 (CanLII).

by Paul Boshyk and George Waggott

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013