Employees may have access to information that is confidential or personal about policies, decisions or other persons in or connected to their workplaces that are not intended for public consumption.
In light of this access, proactive employers have confidentiality and other nondisclosure covenants in their employment contracts. But what if an employee breaches such a covenant and goes to the media or vents their employment frustrations on social media resulting in defamatory conduct against the employer, its employees or its customers?
What is defamation? Defamation can be written, verbal, images or actions. The effect is the same: the negative communication causes harm to another’s reputation or good will and lowers others’ opinions or assessments of them.
Is there more than one kind of situation that can be defamatory? Yes.
- the intentional and malicious communication of untrue information about another meant to cause harm. For example, untrue “anonymous” statements or employer reviews on such social media websites as Glassdoor. Another: The case of Joshi v. Allstate Insurance Company of Canada, 2019 ONSC 4382 (CanLII) as discussed below.
- the sharing of negative information about another that the communicator ought to know is false. For example, an employee making exaggerated negative statements about her former employer on RateMyEmployer.ca to discourage others from working there as was done in Digital Shape Technologies Inc. v. Walker, 2018 QCCS 4374. That employee was ordered to pay the employer $11,000 in moral and punitive damages given the prejudice caused to it by her two negative comments about it posted online.
In the Allstate case when Ms. Joshi and Allstate could not reach a severance agreement after her without cause termination, she sued for wrongful dismissal and her lawyer issued a news release about her claim referencing the allegation that the Allstate office where she worked had a policy that she was concerned discriminated against selling insurance to residents of Brampton, who are mainly visible minorities. Ms. Joshi was interviewed by CBC News and an article was published and picked up by other news media, all of which linked her comments to the industry-wide “all-comers” rule and the “postal code discrimination”, matters under the review of Financial Services Commission of Ontario (FSCO).
In response Allstate issued a:
- Notice of Libel asserting that all such statements were false, malicious and defamatory and demanded a retraction and apology because such statements conveyed the meaning that Allstate:
○ Engaged in discriminatory insurance practices based on race and ethnicity, contrary to the Human Rights Code;
○ Engaged in discriminatory insurance practices contrary to the guidelines established by FSCO;
○ Treats the residents of Brampton in a discriminatory manner; and
○ Engaged in an unlawful reprisal against Ms. Joshi to conceal such alleged misconduct.
- Counterclaim seeking repayment of the employment standards minimum payments received plus $700,000.00 in damages for harm to its reputation and goodwill in breach of her employment duties (with no documented damages) plus the costs of responding to client and regulatory (FSCO) concerns about its sales practices.
In response to the counterclaim Ms. Joshi brought a successful Strategic Lawsuit Against Public Participation (SLAPP) motion dismissing Allstate’s counterclaim – which was dismissed despite the court finding that there were grounds to believe that it had substantial merit and wasn’t brought in bad faith given that there were grounds to believe that Ms. Joshi has more than one valid defence to the counterclaim.
What employers can do to protect themselves?
- Keep current on latest technology and websites and address appropriately in the workplace.
- Monitor traditional and social media for issues or concerns. Where any arise – document them and react to them in an informed and appropriate manner – avoiding any equally defamatory comments in response and only sue when damages are provable.
- Implement and train employees on up-to-date social media, anti-harassment and violence, as well as respectful workplace or non-denigration policies.
- Be aware that defamatory statements about the employer or any other person connected to it can undermine workplace morale and equal participation as well as have negative health consequences to the targeted person. Appropriately address and remedy occurrences.
- Where there is offending commentary sanction the employee under your policy and/or their contractual obligations and ensure abiding by all employer obligations in a timely manner.
Sheryl Johnson is a Partner at Sullivan Mahoney. She has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment, labour, administrative and employment related privacy, cannabis, Aboriginal and Indigenous law as well as in civil litigation. She is the author of Sexual Harassment in Canada: A Guide for Understanding and Prevention. Email: firstname.lastname@example.org