Beyond the Playground: Stamping out Workplace Cyberbullying

By Andrew Shaw & Susan MacMillan on September 10, 2019

Forty percent of Canadian workers experience bullying on a weekly basis. Moreover, 7% of adult internet users in Canada self-reported experiencing cyberbullying at some point in their life. The most common form of cyberbullying involves receiving threatening or aggressive emails or instant messages.[1]

While cyberbullying is a prevalent issue for Canadian workers, there is no universal definition. For example, the RCMP defines cyberbullying as “the use of communication technologies such as the internet, social networking sites, websites, email, text messaging and instant messaging to repeatedly intimidate or harass others.”[2] Public Safety Canada defines cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones and other electronic devices.”[3] The latter definition implies that intent is a requisite factor to establish that cyberbullying has transpired, whereas intent does not need to be shown to establish discrimination or harassment under human rights legislation.

Legislative Context

To date, Nova Scotia is the only jurisdiction in Canada that has a legislated definition of “cyberbullying”. Under the Intimate Images and Cyber-Protection Act, 2017, cyberbullying means:

“an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being or was reckless with regard to the risk of harm to another individual’s health or well-being…”

Although provincial legislation outside of Nova Scotia does not explicitly address cyberbullying, employees may nevertheless have certain protections under the law. Section 162.1 of the Criminal Code penalizes certain forms of online bullying, such as publishing the intimate images of others without consent.[4] Further, case law supports the application of the workplace harassment protections under occupational health and safety legislation to the “cyberworld”.

Developments in the Case Law

The seminal case on cyberbullying of employees is Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re [2016] OLAA No. 267. The case arose from the TTC’s Twitter account, which it had established to respond to passengers’ questions and concerns. The union representing the TTC’s workers filed a grievance demanding that the Twitter account be permanently shut down. The union argued that the employer did not handle numerous offensive tweets appropriately, alleging that the employer failed to protect its employees. The employer’s general practice was to respond to all tweets with information regarding the formal complaints process. Although most of the customer tweets were legitimate requests for information, the arbitrator accepted that a minority were vulgar, offensive, abusive, racist, homophobic, sexist, and/or threatening. The arbitrator agreed with the union that the employer did not take all reasonable and practical measures to protect its employees from harassment. Although the arbitrator refused to grant the union’s request for an order requiring the employer to shut down the Twitter account, the union and employer were required to work together to establish mutually agreed upon strategies for dealing with the types of inappropriate tweets addressed in the decision.

More recently, a 2019 decision from the British Columbia Workers’ Compensation Appeal Tribunal, A1800306 (Re), affirms that employers have a duty to fully investigate and address cyberbullying by coworkers. The decision was made under a particular legislative regime — the worker, a claims adjuster at an insurance company, sought workers’ compensation benefits on the basis that she developed a mental disorder arising out of and in the course of her employment. The worker claimed that bullying by co-workers and her employer’s failure to investigate and adequately respond to the bullying led to her mental disorder. Many of the alleged instances of bullying related to social media posts authored by co-workers, although the worker was not named in the posts. The employer had made some effort to address the worker’s complaint and eventually found that the social media posts violated its workplace harassment policies. The Tribunal accepted that the co-workers should have known that certain of the posts would intimidate, humiliate or degrade the worker. While the Tribunal ultimately held that the worker did not develop a mental disorder arising out of and in the course of her employment, it found that the employer failed in its duty to fully investigate (stopping short of finding egregious behaviour on the employer’s part).

Best Practices for Employers

To foster a healthy, productive workplace and to mitigate legal risk, employers should have clear workplace policies aimed at preventing cyberbullying and facilitating reporting. Both management and employees should receive regular training on the policies.

Employers should consider implementing the following policies:

Cyberbullying policy: The policy should clearly indicate that the employer has zero tolerance for workplace cyberbullying, including specifying that the “workplace” is not limited to the physical office, and may include social media platforms accessed outside of working hours. The policy should also have a clear reporting procedure in place and specify the disciplinary measures that may be taken, up to and including termination of employment.
E-mail and internet monitoring policy: Employers may want to consider reserving the right to monitor communications over company-issued devices, such as cellphones and email, in order to be able to identify cyberbullying in the workplace.
Social media policy: Employers should outline expectations for the acceptable use of social media in the workplace and set consequences for misuse.

Generally speaking, employers should treat cyberbullying in the same way as workplace bullying or harassment and ensure that an appropriate investigation is conducted into incidents or complaints of cyberbullying. Employers may wish to reference their workplace harassment policy within their cyberbullying policy. Employers should be cognizant that bullying is not just a playground issue and no employer is immune to cyberbullying – the old adage, an ounce of prevention is worth a pound of cure, is instructive here.