Online Workplace Communication Requires Specific Harassment Policies

July 14, 2022

Article by: Pamela Costanzo

Previously printed in the LexisNexis Labour Notes Newsletter. 

Remote workers are able to connect with the office and one another using various instant messaging platforms.

While technology allows for flexibility at work, it can also become a forum for conflict and even harassment. Employers with remote workers — or any employees who regularly communicate online — should consider implementing policies that address online bullying.

A recent decision from the BC Workers’ Compensation Appeal Tribunal (“WCAT”) examined an incident of bullying on an instant messaging service called Slack.

Summary of case

WCAT found that communications sent on a channel reserved for matters not related to work were sent in the course of employment. If they caused harm, they could give rise to a compensable injury.

Decision no. A2001211 of WCAT examined a conflict between two co-op students, Jeslen Bucci and Clair Ross, who worked at a web development company. Much of the office communication took place over Slack, rather than in person or face-to-face. On a Slack channel intended only for non-work conversations, they engaged in a political debate about micro aggressions, sexism and racism. Following the debate, Mr. Bucci sent a company-wide e-mail denouncing what he perceived to be Ms. Ross’ expressions of hatred for men.

At a subsequent meeting, a manager stated the company had no HR policies so there would be no discipline for Mr. Bucci as a result of his comments on Slack or e-mail. Later that day, Mr. Bucci drank from his water bottle, noticed a bad taste and then realized his medication bottle was empty. It was discovered later that Ms. Ross had dissolved all of his remaining medication in his water bottle.

Mr. Bucci applied for workers compensation benefits for a mental disorder, claiming trauma resulting from the attempted poisoning. WCAT found the messages he exchanged with Ms. Ross on Slack were personal and the motivation for poisoning his water was thus also personal. While WCAT agreed Mr. Bucci had experienced a traumatic event, the personal nature of the motivation meant his injury did not occur in the course of employment. His claim for benefits was accordingly denied.

Mr. Bucci brought a court action against Ms. Ross for mental injury.

Ms. Ross filed a counterclaim for mental distress arising out of their debate on Slack. Mr. Bucci asked WCAT to certify that her alleged injury was in the course of employment and therefore barred from a court action.

WCAT agreed with Mr. Bucci. It certified that if Ms. Ross had suffered an injury in connection with the Slack messages, her injury was in the course of employment. WCAT stated it was not bound to follow the earlier decision that the Slack messages were not work-related and therefore not sent in the course of employment. Its decision states, “[E]mployment is a broader concept than work and includes more than just productive work activity. An injury or death that occurs outside a worker’s productive work activities may still arise out of and in the course of the worker’s employment …”

Takeaways

WCAT considered several factors to determine whether the activity took place in the course of employment. Factors favouring such a finding were that the conversation took place during work hours, on the employer’s premises, on the employer’s instant messaging service and with a fellow employee.

WCAT found that the conversations on Slack were akin to discussion at the water cooler or on a lunch break, which are incidental to employment and not a substantial deviation from it. WCAT considered there was no policy governing the content of messages and no indication that management had raised concerns about the same. Ms. Ross’ experiences were not a substantial deviation from employment and any resulting injury would therefore be in the course of employment.

This case illustrates the importance of policies that include guidelines on online communication over employer platforms. Employees who experience harassment when using such platforms may have a claim for compensation if they can demonstrate that they were injured by harassing or bullying statements, even in conversations unrelated to work.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.