Messaging apps not as private as you think
Employer must act if messages enter workplace
EMPLOYEES SHOULD REMEMBER MESSAGING APPS ARE NOT ALWAYS PRIVATE, AND PRIVATE CONVERSATIONS BETWEEN COLLEAGUES, EVEN WHEN SHARED OUTSIDE THE WORKPLACE, COULD BE A QUICK ROUTE TO TERMINATION. — HOWARD LEVITT AND PUNEET TIWARI
By now, most employees understand the risks their personal social media activity could pose in their professional lives, but they might have a false sense of security when it comes to messaging apps. As tempting as it may be to impress colleagues with clever quips and memes in private chats, employees should remember that messaging apps are not always private, and that private conversations between colleagues, even when shared outside the workplace, could be a quick route to termination.
This reality recently hit home for five employees of Metrolinx, an Ontario Crown agency that manages public transit in the Greater Toronto Area. In Metrolinx v. Amalgamated Transit Union, five employees were at the centre of controversy after engaging in sexually inappropriate and explicit comments about some of their female colleagues over the messaging app Whatsapp on their cellphones. While the exchanges occurred on personal devices during non-work hours, they came to light during an unrelated investigation, leading to the employees’ termination for cause. The victim in this case, “Ms. A.,” became aware of the messages and reported them to her supervisor but did not make a formal complaint as she did not want to trigger an investigation. All five of the dismissed employees filed grievances.
The arbitrator at the Ontario Labour Relations Board who heard the grievance reversed the termination and ordered reinstatement, ruling that the employer did not have “license to intrude on their private electronic conversations without express contractual, statutory or judicial authority to do so.” Metrolinx appealed.
The appeal brought to light crucial questions surrounding privacy rights in the digital age and the responsibilities of employers and employees. At its heart was the employees’ belief that their Whatsapp conversations were private and encrypted, shielded from the prying eyes of their employer. The Divisional Court disagreed, emphasizing the far-reaching consequences of social media interactions which extend beyond personal boundaries.
Central to the court’s decision was the recognition that even ostensibly private conversations have tangible effects within the workplace. In this case, the messages, intended for a limited audience, found their way into the workplace, potentially creating a hostile environment for the victims of the conversation and triggering an employer’s duty to ensure a safe and respectful environment for all employees.
The court’s decision underscored the employer’s obligation to investigate allegations of misconduct, irrespective of the victim’s willingness to come forward. While some victims may attempt to downplay or ignore instances of harassment or bullying, such reactions do not absolve the employer of its responsibility to address workplace issues promptly and thoroughly. Employers should have someone in HR investigate any allegations immediately and not wait until an outside investigator is hired.
“The employees who participated in the chat were free to, and did, forward the message to other employees,” the court said in addressing the privacy issue. “Wherever it originated, the impugned conduct made its way into the workplace and, to that extent at least, became a workplace issue.”
This case serves as a reminder that the perceived privacy of messaging apps does not shield individuals or companies from accountability. If private, after-hours chats seep into the office, employers are compelled to navigate the delicate balance between respecting privacy rights and upholding workplace standards. Employees must recognize the potential ramifications of their online activities on their professional lives and think twice before posting anything that risks getting back to their employer.
Your expectation of privacy does not extend to those with whom you are sharing your posts, nor anyone with whom it may be further shared.