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Can you be fired for wearing an orange t-shirt?

Posted On: January, 21 2015

Can you be fired for wearing an orange t-shirt? Turns out you can in Florida.

In a recent and on-going case in the United States, 14 employees at a Florida law firm were fired en masse for wearing orange t-shirts.  The background to this story is that these employees began wearing orange shirts on pay-day Fridays, after which they would all go out for a drink together.  While there was no dress code prohibiting the wearing of orange t-shirts, the employer thought that the employees were staging some kind of workplace protest, and fired them for that reason.

This somewhat bizarre case raises an important point about the rights of employers to fire employees and on what basis.

In Florida, state law allows for an employer to fire an employee “at will,” which means that there can be any reason or no reason at all, so long as it is legal, and the employer is not responsible for providing notice, pay in lieu of notice, or severance pay.

In this case, the employer was wrong about the reason the employees were wearing orange t-shirts, and by relying on the notion that they were protesting, the employer actually brought the mass termination into the realm of U.S. labour law, which protects unionized and non-unionized employees alike from being fired for what’s called “protected, concerted activity.”

In Canada, the law is the same in some respects, but different in others.

Non-unionized employees in Ontario may be terminated for cause or without cause.  Unlike the law in Florida, if an Ontario worker is fired without cause, the employer must provide at a minimum notice or pay in lieu of notice and severance in accordance with the Employment Standards Act.  In addition, beyond the obligations set out under the Act, an employer will also be required to provide an employee with reasonable notice under the common law.

Non-unionized employees who work in the federal sector, such as banking, are governed by the Canada Labour Code, and non-management employees who are unjustly dismissed can make a complaint of unjust dismissal seeking damages or even reinstatement as a remedy.

Unlike the United States, non-unionized workers in Ontario do not benefit from any protection under the notion of “protected, concerted activity.”  Only unionized workers have a similar type of protection under the Ontario Labour Relations Act.

Finally, like Florida’s “at will” approach, a termination can be for cause or without cause so long as it is legal.  Terminating someone for a reason relating to a discriminatory and protected ground as set out in the Ontario Human Rights Code and the Canadian Human Rights Act alike, may render a termination illegal.

 

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