Employers less gun shy about terminations for off-duty conduct
The tsunami that is social media could mean employers are being faster, more decisive — and harsh — when it comes to employees’ off-duty behaviour, as seen with a recent incident in Toronto.
Several soccer fans were captured on camera at a Toronto Football Club (TFC) game in May making derogatory comments towards a female news reporter. The men were continuing a viral trend that’s spread in several countries of people yelling offensive statements during live broadcasts.
When CityNews reporter Shauna Hunt confronted two men about it, they called it “hilarious,” “amazing” and “substantial.” But one of the men, Shawn Simoes, was fired from his $106,000-a-year-job at Hydro One almost as soon as the story hit the airwaves.
Simoes was an assistant network management engineer/officer, according to Ontario’s Sunshine List of public sector employees making more than $100,000. His employer said he violated its code of conduct.
“Respect for all people is ingrained in the code and our values. We are committed to a work environment where discrimination or harassment of any type is met with zero tolerance,” said Hydro One on Twitter.
As with any emerging issue, there was a lot of conflicting advice as to what to do, said CEO Carmine Marcello in an interview with the National Post.
“But, at the end of the day, it was a pretty simple decision. We just quite frankly looked at who we are, what our core values are, and we made a values-based decision and decided we couldn’t condone that kind of behaviour. We had to send a clear message to the employee and, quite frankly, to our employee base, and made a decision to terminate him.”
The situation follows closely on the heels of the Jian Ghomeshi scandal at CBC, where the former on-air host was fired in 2014 after allegations of sexual assault.
“I’m sure Hydro One was sensitive to that and wanted to be seen as acting decisively,” said Bill Gale, a partner at Grosman, Grosman & Gale in Toronto.
There was a time when this kind of off-duty behaviour may not have registered the same way, but court decisions have made it clear these types of cases are going to be treated more seriously, he said.
“Against the backdrop of things that are going on now, I can see how public perception also shapes the court’s views and judge’s views. And so I would think a judge would just have a little less tolerance for some person like this — apparently a well-educated person, given the title of his position — feeling comfortable enough to reach into the television sets of all these people out there and, in a very brazen way, just making these offensive statements.
“That has to play into it too, the current sensitivities of the courts.”
After the Ghomeshi scandal, it’s a different ballgame, said Howard Levitt, senior partner at Levitt & Grosman in Toronto.
“There has been a sea change that flowed from that…. so five or 10 years ago, this would never have happened, and also the law’s evolved in the last decade, in this area. There’s always been cases involving off-duty conduct but it’s usually employees who are at some sort of retreat… and they do something silly — that’s what’s generally the off-duty conduct — as opposed to somebody doing something on their own time, nothing whatsoever to do with the employer, and the court found it to be cause for dismissal because it impacted the brand.”
The Crown corporation would have felt the heat if it didn’t take steps to distance itself from the situation, said Daniel Lublin, a partner at Whitten & Lublin in Toronto.
“(Hydro One) didn’t want a circus and I think they just decided to nip it in the bud and said, ‘Look, let’s just rid of this guy. What’s it going to cost us anyway?’”
Social media plays a huge part in all this as the situation blew up in less than a day, said Cole Lefebvre, an associate at Miller Thomson in Calgary.
“The reputational loss that can happen to a business due to it expanding out of control quite quickly can be a bigger cause for them terminating somebody for something like this,” he said.
“With social media, there’s way more out there, people are putting themselves more and more in the public and not realizing the consequences of that and what can happen to that, so I think it’s going to happen more and, in the last 10 years, its definitely been coming up more.”
With a mob mentality, situations can catch on and get out of hand quickly, said Lefebvre, citing the 2013 example of the British public relations executive who tweeted a racist comment while flying to Africa and was fired before she landed.
“(Social media) could necessitate quicker responses from employers and could definitely tone down the reliance on actual evidence of reputational harm instead of the potential for it,” he said.
In certain cases, judges or arbitrators will say they need proof of the damage to reputation, said Lefebvre.
“What they look at is how a well-informed, fair-minded member of the public would have thought in that case. So they look at that. And, at least in this case, you can see that… it’s lot easier now to gauge what the members of the public would say.”
Codes of conduct
While it was unclear whether Simoes was terminated with just cause, Hydro One did the right thing, according to Lublin.
“Hydro One is an important public employer in Ontario and they have a reputation and image that’s elevated above a mom and pop sandwich shop or a garage so they had to take action to enforce their policy,” he said.
“If they didn’t take steps to distance themselves from this individual, what does it say? Those conduct codes are designed to bring attention or to caution employees from doing stupid things outside of work. And if employees violate that principle, they can and should be fired.”
There’s always the freedom of speech argument but that’s moderated by other laws including the Canadian Charter of Rights and Freedoms and criminal law, said Gale.
And whether an employee is in the workplace shouting out offensive slogans or on TV, everybody who works with him can readily identify him, he said.
“I would imagine there’d be a fair amount of uproar in the workplace the day after he went on air and I think Hydro One is entitled to make decisions about maintaining some degree of civility in the workplace. I could see how a number of employees, male and female, would be offended and just find it distasteful to work alongside somebody who is prepared to very publicly display his attitude (toward) women.”
However, an employer should first do an investigation, said Gale.
“The fact that they acted quickly, I guess, was intended to convey their total opposition to this type of attitude or statement and to be reassuring to the rest of their employees that ‘We don’t condone this.’ But I would have hoped that they would have, before they threw him down the elevator shaft, they at least gave him an opportunity to make a comment.”
Even if Simoes is a member of a union, the union might not want to take the case if he files a grievance, said Levitt.
“The union has the legal right to do this, they may say, ‘We don’t want to be associated with this cause, we don’t want to spend our members’ money on a cause that’s antithetical to our union’s values. And I wouldn’t be surprised if they say his only recourse is…a duty of fair representation at the Ontario labour relations board, and the historical success rate of such cases is under one per cent.”
There are a lot of mitigating circumstances to consider, such has the employee’s length of service and disciplinary record, he said.
“If he wasn’t a union employee, probably the same kinds of factors would apply but I don’t think Hydro One cares very much because my view is they did it as a PR exercise more than anything else — they wanted to make a statement publicly and get themselves some great free advertising, which they’ve done.”
But with the swell of negative publicity, has the penalty become too harsh?
A suspension may have worked just fine as it’s a pretty serious thing to be suspended, said Lublin. And Simoes could have argued he was drunk, he’s a good employee and firing is too severe.
“All those arguments may have merit,” he said.
Hydro One probably didn’t intend for Simoes to never work again but he will likely have difficulty finding another job, said Levitt.
“He’s in a real conundrum… Everywhere you go, everything you do, you’d better be prepared to justify it because it can come back to haunt you.”