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Recent Developments

Social Media in Litigation

Social media, including but not limited to Facebook and Twitter, affects employees, employers and litigants in general. Sometimes, Facebook comments may justify dismissal, depending upon the nature of the comments and the context in which they are made, even if made outside of work hours.


The use of social media has become commonplace as it relates to human resources and employment issues. For example, employers often review social media profiles of a job applicant and some employers demand that job applicants provide access to their Facebook account prior to presenting a job offer.


Some best practices that employers may implement to address social media issues, include, but are not limited to:


(i) Internet misuse policies;

(ii) Social media policies;

(iii) Tailoring appropriate remedies for unique situations.


Before posting something that you may be unsure of, seek legal advice. If employers do not have policies in place or existing policies inadequate, it is prudent to seek appropriate legal advice to avoid and/or reduce potential liability.


Three New Leaves through the Employment Standards Act, 2000

These new statutory leaves will provide families, who must take leave from work due to personal health issues or health issues of loved ones, with better options. The three new kinds of leave are:

  • Family Caregiver Leave: Up to eight weeks
  • Critically Ill Child Care Leave: Up to 37 weeks
  • Crime-Related Child Death or Disappearance Leave: Up to 52 weeks


These three kinds of leave are all unpaid, but your job will be protected during that time. For more information on the conditions of each kind of leave, please visit the Bill’s official posting.


Ghomeshi Case – Intersection between an Employee’s Personal and Work Life

The CBC has recently fired one of its radio show hosts, Jian Ghomeshi. He alleges that he was fired due to certain aspects of his sex life being made public. He has launched a lawsuit against the CBC seeking $55 million in damages for breach of confidence and defamation.


Multiple women have made allegations against Ghomeshi, pre and post-termination, of non-consensual sexual violence. The CBC has hired a third-party employment lawyer to conduct an independent investigation. Since this media frenzy, several legal issues have arisen and some are worthy of discussion.


Can you be fired for conduct outside of work?

The Ghomeshi case has raised the question of when an employer can fire an employee for conduct outside of work. Is it your employer’s business what you do on your own time such that you may be fired?


The answer is, yes, so long as the employer is in compliance with all relevant statutory and other laws. To put it bluntly, an employer may fire an employee for any reason, at any time, so long as it provides the employee with reasonable notice or pay in lieu of reasonable notice and has not contravened the Ontario Human Rights Code, or other relevant and applicable laws.


Workplace investigations

The Ghomeshi case has highlighted the issue of rights and obligations of employees and employers with respect to workplace investigations.


Generally speaking, employees have a duty to participate in workplace investigations and to be honest with their employer. To do otherwise, may be grounds to terminate employment without notice or pay in lieu of notice.


Likewise, employers have a duty to be honest with employees and to candidly advise of the purpose, scope and consequences of the investigation.


During a workplace investigation there are rights and interests for both employees and employers. As such, employees are well advised to seek independent legal advice from an employment lawyer if asked to participate in a workplace investigation. This will promote the protection of the employee’s rights and interests during the investigation.


Likewise, it is often wise for employers to consider hiring independent legal counsel as investigators, in order to reduce the risk of legal liability, conflict of interest, bias and/or a public relations nightmare.


The Ghomeshi case is a recent, public example of the intersection between private and work life, relations between employee and employer and the need for employers to be diligent in its response to employee misconduct.


Lessons from the Ghomeshi Case – Promoting Healthy Work Environments

The CBC fired one of its radio show hosts, Jian Ghomeshi. The former radio host alleges that he was fired due to certain aspects of his sex life being made public. He launched a lawsuit against the CBC seeking $55 million in damages for breach of confidence and defamation.


Multiple women have made allegations against Ghomeshi, pre and post-termination, of non-consensual sexual violence. The CBC hired a third-party employment lawyer to conduct an independent investigation. A workplace investigation report was prepared and made public by the CBC. Some of the issues addressed in the report include findings, conclusions and recommendations with respect to the manner in which the employer dealt with complaints of inappropriate behaviour.


A lesson from the report: to promote a healthy work environment, it may be useful to:

  1. Draft and implement workplace policies that create and foster a healthy work environment; these policies should equally apply to all employees regardless of role or status;
  2. Clearly set out behavioural standards and accountabilities;
  3. Create awareness of standards and accountabilities throughout an organization among all employees;
  4. Clearly outline the procedure for reporting inappropriate workplace behaviour; and
  5. Train employees to receive, respond to and address complaints of inappropriate workplace behaviour. Training programs should inform employees of options to deal with inappropriate workplace behaviour and the channels that an employee has to report it.
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