What are your rights at work? We recommend reading this article by Muneeza Shaikh, employment leader, in the Toronto Star, excerpted here:
Fear is permeating Canadian workplaces and the questions are consistently around what discipline (if any) is there for employees who choose to reclaim their political identities through social media.
Various pieces of legislation affect workers in Ontario, such as the Occupational Health & Safety Act, the Employment Standards Act and Ontario’s Human Rights Code for provincial employees. In Ontario, political speech is not a protected ground under Human Rights legislation.
If what an employee does in private (i.e. on a private social media account) flies in the face of the core values of the organization he or she works for, employees can be fired or disciplined for damaging the organization’s brand. If the employee’s words or actions incite hatred towards certain individuals (and are objectively discriminatory), the employee can be fired or disciplined. No organization should permit their employees to target another group.
The short of it: Employees must understand that employers are legally bound to provide their employees with a safe working environment. This statutory obligation requires employers to curb and control any form of expression that amounts to discrimination, violence, harassment, or bullying. If stating political views in the workplace is benevolent, it is OK, when it becomes toxic, it simply is not.
To control or restrict employees’ expression at work, employers can use disciplinary action, corporate policies, or the organization’s rules and guidelines. An employer cannot, under the guise of limiting free speech, discriminate against a group of employees on a protected ground, such as a religion.
Like any other policy, employers must apply one that limits free speech consistently across the board. Taking the position that certain views (objectively seen as inciting hatred) are discipline worthy, while ignoring others of the same vein is grossly problematic. If any employer is differentiating based on who is making the post, not only is this unacceptable, it is unlawful.
In the coming months, as there is an influx of litigation in this area, I suspect the timing of posts is something that adjudicators will consider. Posting something at a certain time might amount to inciting hatred. The same post or photo weeks or months earlier, could objectively be seen as nothing more than “information sharing.”
An employer has to prove that an employee’s social media posts either legitimately jeopardized the employer’s business interests and/or were contrary to human rights or harassment protections. Short of that, it will not be easy to push employees out if they take a political position that is unpopular in their workplace.
For employees who are being targeted in the workplace: An employer cannot discipline you for posting material that makes them uncomfortable.
If employees are being questioned around their social media posts or comments in the workplace, they can ask a few of their own. Ask to be shown the policy that the employer is relying on in taking the position that something improper has been posted. Ask if the policy is being applied consistently to all employees. Where applicable, point to examples of where the social media posts of other employees (similar to yours) have garnered no concern from the employer.
When an employee’s job is on the line, asking the right questions may lend pause to the employer in taking any disciplinary action at all. If it is too late, and you find yourself fired for expressing your opinion, you might have a case.
Employees can be fired for posting hate speech. Employees cannot be fired for peaceful online advocating.
If you have more questions or are facing workplace discipline unjustly, please reach out to our legal team here.
2. Are you concerned at your workplace that corporate leadership seems to be creating a hostile environment for anyone standing for peace right now for the Palestinian people?
Here are points you can use to highlight the ongoing atrocities in Gaza and call on your employer to recognize the backlash faced at home.
NOTE: These points constitute suggested material to empower you to advocate for yourself. It does not constitute legal advice. You should amend it according to your specific situation.
