Social Media and Just Cause dismissal
The case of a Toronto firefighter whose termination was upheld at a union arbitration highlights this point.
He claimed not to realize that his tweets were publicly accessible. In them he had identified himself as a Toronto firefighter and made disparaging comments about women, disabled people and visible minorities.
When these tweets were eventually reported in the media and he was called on the carpet he expressed remorse, wrote a letter of apology and took sensitivity training. That was not enough, however, to save his job.
While online comments in social media are the most recent trend, the issues are not new. Can the local bank manager convicted of drunk driving be terminated without severance? What about a supervisor convicted of sexual assault and who has lost the respect of his subordinates? The list goes on. The story is old. The question remains the same. Can you be fired for just cause for your behaviour on your own time?
The basic factors the law will consider in assessing off-duty conduct have not changed in a long time: Has the employee’s employee harmed the employer’s reputation or product? Can they still perform their duties satisfactorily? Will others still work with her/him?
A new consideration has also emerged: Has the employee offended a human rights policy or Code
to an extent that the reputation of the employer and its employees have been significantly harmed?
In the firefighter’s case, the arbitrator stated, “I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.”
Ultimately the termination was upheld as being lawful.
Every situation is fact-specific. If you are posting comments on Facebook that only your friends can see and you have only 20 “friends” that may be viewed as a private comment that does not generally harm the reputation of the employer. What the shipper/receiver says online will not be nearly as important and potentially damaging as what a vice president says online.
The Jian Ghomeshi situation highlights this point. Although not charged criminally or sued civilly at the time of his termination, he was terminated as a result of allegations regarding his private, after-hours relationships with women. Since Ghomeshi was a very high profile face of the corporation whose image was tied up with that of the reputation of the employer, it has a lot better chance of winning at an arbitration. If the allegations had been made regarding an unknown sound technician at CBC, unless there was evidence of inappropriate behaviour related to co-workers or in the workplace, the chances of success in having the termination determined to be for just cause would be slim.
On the other hand, if there is a more direct relationship between your work responsibilities and your after-hours behaviour being high up in the food chain is not required for the termination to be for cause. Imagine the circumstance in which the company bookkeeper, who has access to the bank account, is convicted of having embezzled from either a previous employer or a non-profit for which she volunteered. The employer would have a good argument that she was in a position of trust with access to their funds and that the fundamentals of the employment relationship had been destroyed; they could not, and should not be expected to, continue to trust her.
The best approach, however, whether you are at the top of the food chain or the bottom, is to assume that the world is watching everything you do online and that getting caught in the midst of bad behaviour after-hours can endanger your employment, whether or not you end up with a severance.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at email@example.com