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OFF THE CLOCK OR NOT? TERMINATION AND OFF-DUTY CONDUCT

Posted On: June, 18 2015

The recent termination of a Hydro One employee following an incident at a Toronto FC soccer match earlier this month has been the subject of extensive public debate. The employee, Shawn Simoes, was part of a group of men who made obscene comments to a City TV reporter, Shauna Hunt. Following the video of this exchange going viral, Hydro One announced that it had terminated Mr. Simoes for a breach of their employee Code of Conduct.

The issue of whether you can be fired for off-duty conduct is not a new one. See our previous blog on this topic here

The key legal issue is whether the off-duty conduct adversely effects the employer’s workplace or its brand. The factors for an employer to consider include, among others: whether the employee is unionized; the position occupied by the employee(i.e. whether he or she is in a position of leadership); the nature of the conduct (i.e. whether it is illegal); and the extent to which it relates back to the employer or the employee’s duties.

A non-unionized employee can be terminated without cause, assuming the appropriate notice is given or severance is paid.A unionized employee, on the other hand, can generally only be terminated for cause. Because unionized employees have the right to grieve a termination decision through the union, the employer would have to establish ‘just cause’ for its decision to terminate an employee. In exceptional circumstances where the conduct speaks for itself, for example, it is possiblethat even a unionized employee would not receive any assistance from his or her union, in which case, the employee may be left without a remedy depending on the provisions of the collective agreement.

In the case of Hydro One’s termination of Simoes, popular opinion suggests that Hydro One made the right decision. Legally however,there is not much precedent for when such appalling comments rise to a level that justifies termination of an employee (see our previous blog for some examples of conduct that a court has found to justify termination).

Some of the criteria Hydro One should have considered in making its decision to terminate Mr. Simoes include (but are not limited to) the fact that Hydro One is funded with taxpayer dollars; the extent to which the public would have been expected to know that Mr. Simoes was employed by Hydro One (i.e. the genuine impact on Hydro One’s ‘brand’); whether Mr. Simoes is in a leadership role; whether Mr. Simoes has women who report to him;and whether or not he has any relevant disciplinary history.

Since the public does not have access to all of those details, and unless Mr. Simoes challenges the decision, we will never know whether Mr. Simoes’ termination for cause is ultimatelylegally justified. With the foregoing in mind, in the age of social media, employees should remain increasingly cautious about managing their off-duty conduct, as the lines between on-duty and off-duty are increasingly blurred and such disreputable conduct may place their employment at risk. 

 

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