Employment law experts divided on legality of disciplinary actions against Gaza conflict comments
HR professionals across Canada are facing an increasingly complex challenge amid the Gaza conflict: balancing employee rights to freedom of expression with organisational obligations to maintain harassment-free, inclusive workplaces.
Employment law experts are at odds over where employers' rights end and employee free-speech protections begin, creating uncertainty for HR professionals managing workplace conduct policies, according to a recent report.
In June, York Region paramedic Katherine Grzejszczak was terminated after commenting on a union Facebook post calling for a demonstration against Israel. She said the termination violates her Charter right to freedom of expression.
Her case has been referred to arbitration, according to The Canadian Press (CP).
Also, a University of Ottawa medical resident, Yipeng Ge, was suspended from his residency after posts describing Israel as a "settler colonial and apartheid state." He was reinstated without disciplinary action following an investigation, but resigned after the school refused to apologise or acknowledge anti-Palestinian racism. Ge has filed a human rights complaint against the university, according to the report.
Balance free speech with workplace safety
Employment law experts are divided on whether such disciplinary actions are legally defensible.
Nancy Shapiro, an employment legal expert volunteering for the Centre for Israeli and Jewish Affairs, said employers must balance free speech with workplace safety obligations. "Employers must tolerate a range of political views, but they also have a legal duty to maintain harassment-free, safe workplaces," she told CP.
However, Toronto labour lawyer Jackie Esmonde said employers are weaponising professionalism to silence speech. She told CP that criticising Israel using terms like "genocide" in off-duty social media should not breach professional conduct codes.
"It's rarely a week goes by where we're not contacted by somebody who is facing discipline, termination for pro-Palestinian speech," Esmonde said, according to CP.
Canadian hate-speech regulations have a narrow definition. Richard Moon, an emeritus professor of law at the University of Windsor, said hate speech requires public and wilful promotion of hatred targeting identifiable groups.
"They have interpreted the scope of it very narrowly, so that it extends only to very extreme forms of expression," Moon said. "Criticism of a state's actions does not fit the definition."
The Israel-Hamas conflict began on October 7, 2023, when Hamas-led militants attacked Israel, killing roughly 1,200 people and taking more than 250 hostage. Israel's retaliatory offensive in Gaza has killed more than 69,000 Palestinians, according to local health officials.
A UN commission of inquiry found in September that Israel was committing genocide in Gaza—a conclusion Israel has rejected, according to CP.
How can employers protect free speech amid the Gaza conflict?
Based on Randstad research and Canadian employment law guidance, here is how employers can protect free speech while managing workplace conduct amid polarising conflicts like the Gaza dispute:
Foster psychological safety around political dialogue - According to Randstad's research on workplace dynamics, 64 per cent of employees feel comfortable sharing their thoughts in the workplace, indicating an atmosphere of openness where diverse opinions are welcomed. Additionally, 78 per cent of workers believe their political stances do not endanger their employment, signalling a healthy separation between professional and personal beliefs.
Randstad research emphasises that "We're all united in the pursuit of creating inclusive environments that not only foster open dialogues but also promote psychological safety. By addressing these needs, we empower every employee to thrive, ensuring a healthier, more productive workplace for everyone".
Establish clear guidelines for political expression - Randstad recommends that employers foster open dialogue and establish clear guidelines governing political expression.
Implement comprehensive workplace policies - Employers should adopt clear harassment and discrimination policies that communicate what constitutes inappropriate conduct, along with properly drafted social media policies and codes of conduct for off-duty activities that may negatively affect the workplace, according to McMillan LLP employment guidance.
Balance employee rights with employer obligations - An employer's job is to balance employee rights with operational needs while promoting a productive and inclusive workplace, particularly given the obligation to cultivate a safe working environment, according to Ascent Employment Law.
Provide training and promote respectful dialogue - Regular training sessions can help employees understand company policies and the importance of maintaining a respectful and inclusive environment, emphasising the distinction between personal opinions and professional conduct, as experts from Ogletree Deakins suggest.
Previously, Ottawa opened its doors to Palestinians escaping the Gaza conflict.
