Termination for off-duty conduct — It shouldn’t be this difficult!

Hydro One's quick action in dealing with employee acting rudely on TV raises issue of off-duty conduct as just cause for dismissal
By Clarence Bennett
|employmentlawtoday.com|Last Updated: 05/22/2015

Twitter has been ablaze over the past week after CityNews reporter Shauna Hunt confronted a group of imbeciles at a May 10 Toronto FC game for mimicking a viral trend seen across North America, in which on-air reporters are harassed with the phrase, “F— her right in the p—-.”

One of the individuals involved was quickly identified as Shawn Simoes, an Hydro One employee. Hydro One quickly moved to terminate Simoes and Hydro One corporate affairs director Daffyd Roderick told The Toronto Star: "Respect for all people is engrained in the Code of Conduct and in our Core Values and we are committed to a work environment where "discrimination or harassment of any type is met with zero tolerance."

The swift action by Hydro One is commendable. Unfortunately, employers face tremendous hurdles when terminating employees for “off-duty conduct.” Arbitrators and courts have considered five broad factors as follows:

  • The conduct of the employee harms the company’s reputation or product
  • The employee’s behaviour renders the employee unable to perform his duties satisfactorily
  • The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
  • The employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the company and its employees
  • Places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

It is not necessary for an employer to show that all of these criteria exist, but that, depending on the impact of the offence, any one of the consequences may warrant discharge for cause (See for example: CUPE, Local 1117 v New Brunswick (Department of Education)).

Broadly speaking, the cases suggest that:

  • Reputational damage is a serious concern and public knowledge of an employee’s misconduct can affect an employer’s legitimate business interests, favouring dismissal for just cause.
  • If it can be construed that the nature of the employee’s offence objectively and reasonable renders the employer to lose confidence and trust in the employee, it supports just cause.
  • If the employee's co-workers are aware of and uncomfortable with the employer's transgression, his reinstatement may interfere with their ability to perform required work, meeting the fourth criteria for just cause.

While all of this sounds straightforward, employees terminated for criminal convictions involving armed robbery, sexual assault (see for example: Hendrickson Spring Stratford Operations v USWA, Local 8773), molestation and possession of child pornography have all been reinstated to their positions. In fact, absent the employee having a public position of trust, it has been difficult for employers to uphold terminations for “off-duty conduct.”

While they are deplorable, Hydro One has a good set of facts to establish just case. They were quickly identified publicly as the employer of Simoe and they can argue that they cannot be expected to tolerate the behavior exhibited by Simoe and his pals (or the reputational impact of same. Hopefully, cases like this will assist in Courts and Arbitrators reassessing the impact of an employee’s off-duty conduct, in the age of social media.

For more information see:

  • CUPE, Local 1117 v New Brunswick (Department of Education), 2009 CarswellNB 630 (N.B. Arb.).
  • Hendrickson Spring Stratford Operations v USWA, Local 8773, 2005 CarswellOnt 2254 (Ont. Arb.).

Clarence Bennett is a partner with Stewart McKelvey in Saint John, N.B., practicing labour and employment law. He can be reached at (506) 634- 6414 or cbennett@stewartmckelvey.com.

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