Canadian employees need to think twice about their off-hours actions as the line between our professional and personal lives continues to blur with social media making sure our antics away from work can get back to our employer far too quickly.
This concept leapt to new heights this week after Hydro One revealed that it was terminating a manager for violating its code of conduct after his obscene statements to a female CityNews reporter became the subject of intense social media vitriol.
The individual in the video was not speaking on behalf of Hydro One and he did not associate himself with his employer, but he was fired anyway, after he was outed on social media and word got back to the company.
As I have previously written in this column, every employee – especially senior ones – should consider that what they do on their own personal time, rightly or wrongly, can be exposed to their employers. But do employers have the right to fire any employee who makes a statement that they disagree with and would such a termination ever be upheld in court?
No employee outside of a union has a right to continued employment. They can be fired for any reason as long as they are given an appropriate severance package. But in cases of alleged serious misconduct, such as conduct incompatible with continuing the employment relationship, employees can be summarily fired for "just cause" without any notice or severance. In these situations, their dismissals can be challenged in the courts and judges will have to strike a balance between protecting employees from their employer's rash decisions and an employer's right to discipline its work force and protect its public image.
Assuming the Hydro One employee was fired for cause, does he stand a chance if he decided to sue? Here are some of the factors a court will consider:
Was he part of a union? As a management employee, it's not likely. But if he was part of a union he could not sue the company in court and would have file a grievance through the collective agreement. However, if that were the case, he could only be fired if the employer were able to demonstrate that there was "just cause."
How long has the employee worked for the company? Junior employees with little tenure are not given the same deference as long-tenured employees in dismissal cases.
Does the employee have previously disciplinary history? Employees with a previous disciplinary past, even if unrelated to the incident that led to the termination, have a harder time challenging their terminations.
Does it affect the employee's ability to do his job? If co-workers, and particularly female workers, testified that they were unwilling or unable to work with him because of how he expressed his views, it would help support the employer's case that summary dismissal was warranted.
Does the employee represent the employer's brand or public image? Senior managers, executives, sales representatives and public relations employees, for example, all have a higher obligation to protect their employer's brand. If an individual's personal views, even expressed outside of work, bring serious negative publicity toward his or her employer, it becomes more difficult to challenge a termination for just cause.
Did he violate Hydro One's policy? Many employers now have policies or contracts with language that specifically define inappropriate behaviour. These clauses form an important term of the employment relationship and often are relied upon by the courts in determining whether an employee's conduct cannot be tolerated.
Is the policy even enforceable? Just having a workplace policy is not enough. An employer has to prove that the policy was given to and read by the employee.
What conclusions can we draw? With the public's seeming interest in examining and "outing" people for what they do when off-duty, what is relevant in the court of public opinion is beginning to closely resemble what is relevant in a court of law.
Daniel A. Lublin is a partner at Whitten & Lublin, Employment Lawyers, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com
Daniel Lublin