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EMPLOYMENT LAW
Nov 17, 2014

Worker's off-duty misconduct one to 'remember'

But Franck Gervais' employer should not act hastily in considering discipline
    

By Jeffrey R. Smith

By now many people have heard about Franck Gervais, the 32-year-old man from Cantley, Que. He’s the guy who was interviewed by a CBC reporter at the Ottawa Remembrance Day ceremonies dressed in full Canadian Armed Forces uniform, talking about what the occasion meant to him as a member of the country’s armed forces. The only problem was, he wasn’t really a soldier. 

After alarm bells went off for many who saw him wearing various uniform elements that weren’t quite right, it turned out Gervais had never served in the military. And impersonating a public officer and falsely using a badge or uniform is against the law. On Nov. 15, Gervais was arrested, charged and released by Ottawa police. 

But that’s not the whole story. For the past 12 years, Gervais has worked for Potvin Construction, an Ottawa-area construction company. Apparently, Gervais had been telling co-workers for quite a while that he was a veteran of the Armed Forces, and no-one had any reason not to believe it — until the Remembrance Day story hit the news. 

And after Gervais was charged by police, Gervais was suspended with pay. Potvin \ is apparently looking at ways to deal with the situation and protect its reputation. According to a report in the Toronto Star, it’s consulting legal and public relations experts. 

It’s not uncommon for employers to suspend or otherwise discipline employees for off-duty misconduct that results in legal trouble, especially if it can be tied to the employee’s ability to perform the job. And protecting a company’s reputation with the public can be important as well, as negative attention could hurt business. 

However, the employer in this case should be careful of how it proceeds. While Potvin Construction likely wants to avoid any negative publicity from its association with Gervais and be seen as responding to the situation, there is the potential for legal liability. 

While Gervais did break the law and faces multiple charges under the Criminal Code, there is a question of relevance to his job. Does impersonating someone from the military strike at the heart of the employment relationship and call into question his ability to do his construction job? Does his job require a certain level of trust that his employer can no longer have in him because of his actions? Maybe. But the employer had better be ready to prove that if it takes further action. 

It’s true there has been a lot of anger directed at Gervais for his perceived slight at the uniformed personnel who defend our country, and it makes sense his employer wants to avoid this negative publicity. But how much of a concern is this really? Is the company concerned customers will avoid its business because one of its construction workers is in trouble? Again, it’s possible. But this might be harder to prove. 

Also, there is another issue at play here — the possibility Gervais has some form of mental illness. This certainly isn’t out of the realm of possibility. It seems a little odd that someone would dress up in a military uniform, go to Remembrance Day ceremonies and pretend he is a soldier on TV. And it seems Gervais had been telling people at work for years that he was a veteran. There are even reports of Facebook photos depicting Gervais wearing the uniform at his wedding. 

Even though his behaviour was disrespectful and galling to some, perhaps Gervais didn’t see it that way. Perhaps he really thought he was honouring Canadian soldiers and didn’t understand the gravity of his conduct. If that is the case, there was probably no bad faith or malice in his actions, just signs he may need help — and accommodation. 

Potvin Construction has done a smart thing, though — his suspension is paid for the time being, which means Gervais isn’t suffering loss from the company’s actions, other than perhaps embarrassment or lost prestige amongst co-workers. 

As long as the company waits until a full investigation is complete before making the suspension unpaid or dismissing Gervais, the liability risk is a little less. But before the company decides what to ultimately do with its controversial employee, it would be prudent to remember there can be a lot more than what’s on the surface — or under the beret.

    
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