Facebook insults may be reprehensible but are they just cause for dismissal? (Legal View)

Man in London, Ont., fired after posting derogatory comments on tribute page for bullied British Columbia teen who committed suicide
By Stuart Rudner
|Canadian HR Reporter|Last Updated: 11/05/2012

The story of Amanda Todd, the 15-year-old girl who took her own life after years of bullying, is a tragic one.

As the community rallied around her, and anti-bullying initiatives took on a new life, one man posted the following on a Facebook memorial wall for Amanda: “Thank God this bitch is dead.”

The poster was readily identifiable as Justin Hutchings of London, Ont. His employer, Mr. Big & Tall Menswear, was also readily identifiable. Hutchings was promptly dismissed, though reports are unclear, as of press time, as to whether he was fired for cause or not.

Here’s the question: Did the company have just cause to dismiss him over the Facebook posting?

Let’s remember a few basic principles:

• Most employees in Canada do not have job protection. They can be let go at any time, for any reason (other than protected grounds under human rights legislation) as long as they are provided with the required notice of dismissal or pay in lieu.

• Generally speaking, what employees do on their own time is their own business.

So, it would be open to an employer in this type of situation to dismiss the employee on a without cause basis, as long as it provides notice or pay in lieu. However, if the employer wants to take the position it had just cause, we need to continue the analysis.

Off-duty conduct will be considered misconduct that 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 the refusal, reluctance or inability of 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 directing its workforce.

In other words, the conduct must have an impact on the employer or the employment relationship to constitute misconduct.

And if an employee has engaged in misconduct, the next question is what form of discipline is appropriate — summary dismissal or something less?

In assessing whether summary dismissal is appropriate, the law is clear the misconduct is not to be considered in isolation. Rather, a contextual approach is to be used that takes into account all relevant circumstances.

This can include length of service, disciplinary record, the nature of the position (and degree of trust required), any mitigating circumstances and the employee’s response when confronted with the allegation.

In marginal cases, the employee’s honesty (or lack thereof) in the investigation process can be the difference between a finding that the employment relationship has been irreparably harmed and just cause for dismissal therefore existed, and a conclusion that summary dismissal would be too harsh. Throughout the analysis, the principle of proportionality is to be kept in mind.

When explaining the decision to dismiss Hutchings, Kamy Scarlett, senior vice-president of store operations and corporate HR at the parent company of Mr. Big & Tall Menswear, stated: “Our company ethics are based on tolerance, respect and fair and honourable treatment of all individuals, internally, with our customers and the population as a whole.”

Scarlett also said, “We have zero tolerance for the mistreatment of others, no matter what form it takes.”

I often urge employers to use “zero tolerance” policies cautiously. Just because your policy says something will be just cause for dismissal does not mean a court will agree. The contextual approach must always be applied.

Furthermore, zero tolerance policies can lead to unintended results. Most employers will say they have zero tolerance for employee theft.

However, when confronted with an assistant who takes a pencil home one night so his daughter can do her homework, the employer will be reluctant to dismiss the employee for what is clearly an act of theft.

Getting back to Hutchings, it is unclear at this time whether he was dismissed with or without cause. While we know what he did, there is much we don’t know about the relevant background and circumstances.

As such, it would be difficult, at this time, to comment on whether or not the employer had just cause to dismiss him. That said, his conduct was morally reprehensible and it is hard to fault the company for terminating the employment relationship, with or without just cause.

Stuart Rudner is a Markham, Ont.-based HR lawyer and a partner in the labour and employment law group at Miller Thomson. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595-8672 or srudner@millerthomson.com.

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