OHL official's disparaging tweet results in suspension – and raises question about employer responses to off-duty conduct
By Stuart Rudner
Yet another employee has gotten themselves into trouble by tweeting without thinking of the consequences. Last Friday, Ontario Hockey League (OHL) referee Joe Monette was in Sault St. Marie, Ont., and posted the following on his Twitter account: “Soo Saint Marie, two words, Slim Pickens. #noteeth #hicktown #allfaties."
Trying to put out the fire his tweet had caused, he subsequently posted this: "My tweet last night was not meant to be offensive and was meant as a joke between myself and a buddy of mine that lives in the Soo. I apologize if I offended anybody".
The OHL, obviously not appeased by Monette's "explanation", has suspended him for the balance of the season and playoffs.
In a recent blog post, I wrote about Justin Hutchings of London, Ont, formerly employed by Mr. Big & Tall Menswear. Hutchings posted a reprehensible comment on the Facebook memorial wall for Amanda Todd, a 15-year-old girl that committed suicide following years of bullying. Hutchings, who was readily identifiable as the author of the post, was promptly fired by Mr. Big & Tall Menswear, also readily identifiable as his employer and obviously not pleased about the potential impact on its reputation.
As the issues surrounding employees' online conduct continue to evolve and become more prevalent, I am often asked by clients whether an employee can be disciplined for conduct away from the workplace. The short answer is yes, but of course it will depend on the circumstances. Off-duty conduct will be considered misconduct which can result in discipline or dismissal if:
•the conduct of the employee harms the company’s reputation
•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’s conduct makes it difficult for the company to properly carry out its function of efficiently managing its works and efficiently directing its workforce.
In other words, the conduct must have an impact on the employer or the employment relationship to constitute misconduct.
As I wrote in the earlier post referenced above, once misconduct is found to have occurred, the employer will have to assess the appropriate form of discipline. This involves a contextual approach which considers all relevant circumstances and not just the conduct in question. I write about this extensively in my book, You're Fired!
Employers should monitor what is happening online to ensure that their reputation is not being tarnished. When employees engage in misconduct, or are suspected of doing so, I always caution clients to avoid reacting in haste or out of emotion, and to investigate properly. I also encourage clients not to shy away from summary dismissal when it is warranted.
As I often say, "just cause is not a lost cause".
Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595-8672 or email@example.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.