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Dismissal of Hydro One staffer could lead to severance payout

Shauna Hunt interviews a soccer fan in Toronto on Sunday, May 10, 2015, in this video frame grab. A man caught on video hurling obscenities at a female TV reporter is now out of a job. Hydro One says it is taking steps to terminate one of its employees for violating the company code of conduct.

HO/The Canadian Press

The rapid move by Hydro One Inc. to fire an employee caught on camera making vulgar, sexist remarks to a female TV reporter at a Toronto FC soccer game could result in a severance payout for the misbehaving worker, some employment lawyers say.

At issue, if the case ever gets to a court, is the question of whether Hydro One could show it had "just cause" to fire assistant network management engineer Shawn Simoes, who was identified as one of the men confronted by a TV reporter after sexual obscenities were shouted at her.

Unless Hydro One, Ontario's government-owned electricity distributor, can prove the incident damaged its reputation or affected its workplace, the utility could end up paying several months' severance pay. Or it could quietly make a settlement before anything goes to court.

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If the employee is in a union, he could grieve his dismissal in the hopes an arbitrator would order him reinstated or award him a severance payment. It is unclear whether Mr. Simoes, who, according to the government's "sunshine list," made $107,000 in wages and benefits last year, is in a union. Hydro One did not respond to a request for comment.

Whatever happens, it appears Mr. Simoes and three other men will not be attending any more Toronto FC games for now, as a spokesman for Maple Leaf Sports and Entertainment, which owns the soccer team, the Toronto Maple Leafs and the Toronto Raptors, confirmed the company is banning four men over the incident.

Some lawyers say Hydro One could face a serious fight if Mr. Simoes decides to challenge his firing.

Unlike former CBC radio personality Jian Ghomeshi, who was fired for alleged sexual misconduct and is facing criminal charges, Mr. Simoes likely cannot be said to have been a public face of Hydro One, some employment lawyers said. His link to Hydro One appears to have been first exposed on social media and in news reports, prompting the utility to issue a public statement.

Some lawyers say if the firing is challenged, Hydro One could have a fight on its hands.

"I think the employer would have an uphill battle … in a case like this," said Louis Sokolov, a Toronto employment lawyer at Sotos LLP. "Assuming he was not wearing branded clothing of his employer at the time."

David Doorey, an associate professor of labour law at York University, said courts could refuse to rule an employer had just cause if the behaviour was an aberration or a drunken mistake in an otherwise unblemished work history.

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Still, Hydro One has some strong arguments, Prof. Doorey said in an e-mail: "The story has gotten a lot of notoriety. All of the guy's co-workers know what he did, and many are probably deeply offended. Some may not want to work with him. His actions also demonstrate a lack of judgment and personal control. The company is a prominent employer and has a business interest in not being seen as condoning misogyny by its staff."

Courts and labour arbitrators have previously refused to label making obscene comments in the workplace, or even slapping a co-worker, as just cause for dismissal, said Landon Young, managing partner of employment and labour law firm Stringer LLP.

"Unless he is some sort of senior manager or executive, I don't think they will succeed in court," Mr. Young said. "Just because they have one guy say something offensive, as offensive as it is, I mean, people are still going to pay their Hydro bills."

While Ontario Premier Kathleen Wynne tweeted her support for the TV reporter, her office said she was not involved in the decision to fire Mr. Simoes.

With a report from Jane Taber

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