Organizations in both the public and private sector are tightening the screws on their Internet usage policies and enforcement procedures.
The rise of social media such as Facebook and bandwidth-gobbling video sites such as YouTube is prompting many to revisit and tighten their rules, says Daniel Lublin, a Toronto-based employment lawyer. “Many organizations in both government and the private sector are implementing usage policies or reworking them because the types of misuse have broadened,” he says.
Blogs and Facebook are introducing new worries as these types of postings can be seen by millions and have a long Web life. “They don’t disappear like e-mail or even the news,” says Lublin. In particular, there’s concern about leakage of corporate secrets, and defamation and libel if an employee’s views are misconstrued as their employer’s.
“The language in a policy can assist an organization’s defence in potential wrongful dismissal suits, or eliminate potential liability altogether. It can only improve an employer’s position to have things in writing.”
But having it in writing is only half the equation. Government organizations are reviewing their rules from a different perspective. “I’m not sure our policy has to change for new technologies – rather it’s the enforcement,” says Peter Macaulay, head of corporate IT security in the Ministry of Government Services at the Ontario government. “Our policies and procedures are on par with industry, but in some cases, due to our size, we may have been more lenient and not as quick to terminate as in the private sector.”
One case of government leniency last year roused public wrath. Two women’s groups criticized the government for the way it disciplined Michael Hurst, an Industry Canada employee who disseminated offensive e-mails from his office in Yellowknife, NWT. The message invited recipients to pick “Miss Northwest Territories” from four photos of naked or nearly naked women – three were young blonde models while the fourth was an older aboriginal woman.
Hurst was required to undergo sensitivity training and do 75 hours of community service. The women’s groups believed he should have been terminated.
The case highlights some issues in the public sector, where decisions about disciplinary action are typically made by local HR managers in a particular ministry or agency, explains Macaulay. This approach is currently being revisited in the Ontario government to ensure that sanctions applied for Internet misuse are consistent. “What we want to do is take that discretion away so sanctions are consistently applied across the board in the Ontario public sector,” he says. “It’s not fair that someone might be fired at one ministry for circulating a pornographic image but not at another.”
Lublin agrees inconsistency in responding to Internet misconduct may open the door to liability if there are charges that an employee has been dealt with unfairly compared with similar cases in other departments. “Inconsistent disciplinary actions will help employees’ cases in law suits,” he says.
However, he points out Canadian employment law requires judges to look at the context around cases involving pornographic material and other acts of delinquency in the workplace.
“The context the Supreme Court would require is, firstly, to assess if the employee has a stellar record or a history of misconduct. The second would be to determine if the punishment fits the crime, or proportionality,” says Lublin. “A long-term employee is less likely to be terminated if it’s an isolated incident versus a short-term employee with a checkered history of warnings about workplace behaviour.”
Depending on the circumstances, judges will consider If there is a lesser form of discipline that may be more appropriate than dismissal, he adds.
While there are many types of misconduct that could lead to termination, Lublin highlights one area that’s viewed as particularly egregious. “Online harassment is a big one and one of the most prevalent. Employers have human rights obligations to provide a harassment-free workplace.”
There are two types of harassment: personal or cyber-bullying, and discrimination-based harassment as defined in the human rights code as offensive based on race, ancestry, religion and so on.
Given the multitude of factors considered, many workers are confused about what constitutes a ‘firing offense.’ “Any employer can dismiss any employee for whatever reason so long as there’s no discrimination in the case – and provided the employee is paid sufficient severance,” says Lublin.
Workers also believe freedom of speech protects them from workplace consequences. Not so. “It’s okay to make blog or Facebook postings on your own time, but if the postings can be construed as linking to an employer who has authorized an employee’s statements, the employer could be liable and so can take action to prevent that.”
The long arm of an employer may even extend into areas where the off-duty misconduct is not related to the workplace. For example, if an individual is charged with viewing child pornography at home, this may be cause for dismissal in Ontario even if the individual’s job is not related to children, says Lublin.
“This too can be cause for dismissal in Canadian law. You have to look at how it affects the employer’s reputation, and if it leaves other employees feeling unwilling or uncomfortable to work at the organization.”
Rosie Lombardi is a Toronto-based freelance journalist. She can be reached at [email protected]