Employee A receives an intimate/personal image on her ‘phone from Employee B (of Employee B). A then forwards the image (i.e., shares it) with others, both within and outside of the workplace. B brings a harassment complaint against A, under the employer’s mandatory prevention of workplace harassment policy. The employer investigates. A is terminated summarily, with no severance or other statutory notice of termination, under Ontario’s Employment Standards Act, 2000 (the “ESA”), or otherwise.
A makes a complaint to the Ontario Ministry of Labour, pursuant to the ESA and Ontario’s Occupational Health and Safety Act, challenging the summary termination and seeking termination pay under the ESA.
The Ministry upholds the employer’s termination and dismisses A’s complaint.
In doing so, the Ministry relied on a provision in the ESA, whereby an employee is not entitled to notice of termination or termination pay under the ESA if “an employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer.”
If this is the case, A is not entitled to the minimum, statutory standards in Ontario for termination notice and pay.
The employer must prove that A, on a balance of probabilities, that his exemption applies, including that A acted willfully, rather than in a careless, thoughtless, headless or inadvertent manner, no matter how serious.
Accordingly, privacy in our increasingly digital age and workplaces is being recognized and protected more diligently by our regulatory bodies.