Over the last few weeks, several cases of sexual harassment allegations have been posted both openly and anonymously on social media in Quebec.
One issue that will surface for employers is how these public allegations should be handled when the actions, comments or gestures stem from one of their own employees.
First, provincially regulated employers need to make sure they have a psychological harassment prevention and complaint processing policy in place. This policy must be made available to employees and include a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature. For details on the obligations incumbent on federally regulated employers regarding the prevention of workplace harassment, please see our legal updates on some of the latest amendments to the Canada Labour Code and its regulations, both of which will be coming into force on January 1, 2021.
Normally, preventive measures should work to encourage employees to turn to complaint-related processes, rather than taking the matter into their own hands on social media. Some employers might also consider implementing a social media policy prohibiting the publication of defamatory comments regarding the employer or work colleagues. This can help encourage employees not to have their complaints addressed on social media.
That being said, if an employee does make allegations on social media and those allegations are brought to the employer’s attention, it will generally have to investigate and take the measures that may be necessary once the investigation is complete.
On a related note, employers may face situations where allegations are made by a person who does not work (or is no longer working) for the organization. Take, for example, allegations of sexual misconduct. In such a situation, employers have to determine if it is their legal duty to investigate and the appropriate measures that can be taken against the employee facing the allegations (should the investigation conclude that these allegations are founded).
These are highly factual questions that depend on the employee’s position within the business and the nature and severity of the alleged misconduct, among many other factors. For instance, such misconduct could include behaviours allegedly perpetrated by the accused employees that are found to be inconsistent or incompatible with the position they hold. That said, in some cases, employers will unfortunately have limited investigative powers in this respect.
If such allegations are serious or target one of the business’s key employees, employers may need to carefully consider whether the employment relationship can be sustained, even if they are unable to conduct their own investigation. In such cases, employers may consider to what extent the employee can pursue legal remedial avenues leading to reinstatement. Depending on the outcome of that analysis, employers may consider terminating the employment relationship in the best interests of the organization, despite any risk of damages.
This, in the end, is a legally and factually driven topic, one that must be approached with great care. Indeed, employees who are subject to dismissal in this manner might not only seek damages for the termination of their employment relationship (notice of termination), but could also explore legal remedies for reputational damage. Should multiple accusations of inappropriate sexual conduct be made against an organization’s officer on social media, it may be appropriate to consider terminating his or her employment. In sum, the pros and cons should be carefully analyzed before any such option is considered.
To conclude, it is important to note that employers may need to suspend an employee during the course of an investigation, or potentially take measures against an employee who made a decision to publish allegations on social media (although the latter should be considered with the utmost precaution and in compliance with the employer’s applicable policies and practices).
If you have any questions on this topic, one of our team members would be happy to assist.
 Section 81.19 of the Act respecting labour standards, CQLR c N-1.1.