We have seen this cautionary note repeatedly in the last few days as the social and regular media have lit up after a CityNews female reporter was harassed while interviewing Toronto Football Club (TFC) fans outside of the stadium. The language used was so vulgar that an acronym sprung up to tell the story for public consumption.
The vulgar language used has cost at least one heckler, a Hydro One employee his job.
While the issues are multi-faceted, from an employment perspective, it raises the question as to whether an employer can terminate an employee in response to conduct which occurs outside of regular work hours when the employee is “off the job”.
It is important to remember, that outside of a unionized context, an employer can elect to terminate employment for any reason, (as long as it is not for discriminatory reasons contrary to the Ontario Human Rights Code), as long as they meet certain statutory and common law obligations for notice and severance. At the time of posting this blog it is unclear as to whether the Hydro One termination involved a unionized employee or alternatively a dismissal for or not for cause.
So, when can an employer terminate for cause for off duty behaviour? To begin with, there must be a connection between the alleged conduct and the interest of the employer. The basic rule of thumb is that an employer cannot discipline an employee for off duty behaviour which does not interfere with the employee’s performance at the employer’s business. If the employer can establish at least one of the following, it has been held that off duty conduct may constitute just cause for dismissal:
1. The conduct harms the company’s reputation;
2. The behaviour renders the employee unable to perform his or her duties satisfactorily;
3. The behaviour leads to refusal, reluctance, or inability of other employees to work with him or her;
4. The employee has been guilty of a serious breach of the Criminal Code and thus renders his or her conduct harmful to the reputation of the employer and its employees.
Historically, it has not been easy to terminate employment for cause for off duty conduct. Having said that, in the social media age, increasingly individuals are posting material on and accessing sites such as Facebook, Internet blogs, and Twitter, widening and making public the forum for bad behaviour. Activity that previously might have been witnessed by a handful of people or less is now on display for the all world to see.
If the conduct is sufficiently offensive as to be inconsistent with the employees continued employment relationship then an employer may have grounds to terminate employment for cause. It has been interesting to watch the law develop in this new age of social media. While dismissal for cause is very difficult for employers to prove (a well known jurist referred to it as “the capital punishment crime of employment law”) arbitrators have rejected the suggestion that Facebook posts and other online communication are private and akin to discussions outside of work hours over coffee or a beer with friends.
A number of decisions by arbitrators and tribunal members have consistently recognized that social media, such as blogging on the internet and Facebook are not private communications but meant for public consumption and employees need to be careful about their communications. Communications that can bring damage to an employer’s reputation will support a dismissal for cause.
In a British Columbia case, an employer was found to have cause to end employment where an employee had posted to his Facebook rants about his workplace frustrations which included aggressive and threatening statements referring to a supervisor as “a complete jackass” and a “half a tard”. The nature of the position held by the employee participating in the misconduct can also be significant. For example, decisions by employers in the healthcare sector to fire employees who have posted on line communications with references to patient information have been upheld.
As a result of the unwieldy nature of social media and the implications for companies, employers have started to insert provisions in employment agreements and workplace policies governing online behaviour. In doing so, employers are not only educating employees on what is acceptable behaviour but creating the tools to dismiss for cause in cases where they cross the line.