Employment & Labour

Due process disappearing for the publicly shamed

By AdvocateDaily.com Staff

Due process has become a thing of the past for people who are publicly shamed when allegations go viral, Toronto employment lawyer Natalie MacDonald tells AdvocateDaily.com.

“We’re becoming a society that no longer investigates things,” says MacDonald, principal of MacDonald & Associates. “Instead, we just jump to conclusions based on allegations that are not properly tested and without giving an individual a chance to respond.

"My concern is that an allegation is being equated with a finding of guilt. It’s problematic in my view, and it’s something that is turning us into a culture of witch hunters.”

MacDonald says individuals who are at the centre of media scandals can often expect to find their employment in jeopardy just by virtue of the allegations.

“In employment law, once an employer finds out about allegations in a society that is guided by due process, they have a duty to investigate and determine what the person’s response is,” she says.

However, that’s not the way it always works in practice, MacDonald says. Employers, often keen to be seen to act immediately, prefer to fall back on their right to dismiss employees with cause, without giving an individual an opportunity to provide a response.

“In my practice, I see many employers acting too swiftly on allegations that haven’t been proven," she says.

Even as they are increasingly abandoned by employers and society at large, MacDonald says the importance of concepts such as due process and thorough investigations into allegations cannot be overstated, thanks to the nature of media in the modern age.

“People have to be so careful today because ideas take hold in social media very quickly, and can be disseminated without any thought or analysis,” exacerbating the effect of a shaming episode and possible subsequent firing, she says.

“Such dissemination will determine your reputation for some time. You will never live it down once the media gets hold of something,” MacDonald adds.

The difficulty for publicly shamed individuals to force sites to take content down or to include their response to allegations could prompt Canada to develop its own law modelled on Europe’s “right to be forgotten,” which allows people to object to, and request the deletion of, information about themselves under certain circumstances, she says.

“Given the consequences of such information, I think we must consider Europe's lead,” MacDonald says.

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