Shoot first, ask questions later (Editor's Notes)

Employers getting bolder about quick terminations after off-duty conduct

It’s hard to feel a lot of sympathy for Shawn Simoes, the Hydro One worker fired from his six-figure job after making derogatory comments in front of Shauna Hunt, a reporter for CityNews, outside a Toronto FC soccer game in May.

He may not have been the one to shout out “F— her right in the p—” — the vulgar phrase that emerged as an Internet hoax and has turned into the bane of female TV journalists everywhere — but he didn’t back down when confronted by Hunt and went on to make his own comments on camera, including one involving a vibrator.

He made his bed, he has to lie in it. He did offer a written apology to Hunt after the fact (which she graciously accepted), so there’s some credit for remorse, albeit a little late. It certainly moves the sympathy needle a bit — nobody likes to see someone have his career and life ruined over juvenile behaviour.

But what’s fascinating from an HR perspective was the lightning fast decision made by Hydro One to cut ties with Simoes. Termination is often referred to as the capital punishment of employment law. There isn’t a more severe penalty when it comes to the employment relationship.

One can just imagine the flurry of activity that went on in the halls of Hydro One as the story broke — a confluence of lawyers, HR professionals and senior executives meeting and acting so decisively. The video was filmed on a Sunday. The story didn’t really go viral until the following day. By Tuesday, Simoes was persona non grata at his workplace.

Anyone who has been involved in a termination knows the needle almost never moves that fast.

Part of a trend?
I’m not sure I’d call it a trend yet, but there seems to be a mentality developing among employers that perhaps it’s easiest to mete out the maximum allowable punishment when bad behaviour hits the evening news, and then to scale it back on appeal. I’ll call it the social media effect — because news travels so fast now, and public outrage grows even quicker, sometimes the easiest thing to do is cut ties with the employee making headlines. 

A third party can figure out later if it was the right decision. At least in the meantime the beast has been fed — and the public will move on to another target.

Ground zero for this employer behaviour was the Ray Rice saga in the National Football League last year. Rice, you may recall, knocked his wife unconscious in the elevator of a hotel. The NFL’s initial discipline was a two-game suspension for Rice, a star running back for the Baltimore Ravens. After that slap on the wrist, the Internet exploded and the story hit mainstream media. When the dust settled, Rice’s temporary ban had been substituted with an indefinite one, and the NFL’s reputation had been left in tatters.

Fast forward to 2015, and the NFL appears to have adopted that “take the severe road” punishment philosophy for its players. Tom Brady, the Super Bowl-winning quarterback of the New England Patriots, was accused of deflating footballs during last year’s playoffs. (Well, he wasn’t accused of doing it directly. It’s a complicated story, but staff members were accused of doing it under his direction or, at a minimum, he was likely aware they were doing it.) 

There was no smoking gun, but despite that lack of solid evidence, the NFL suspended Brady for four games, took two draft picks from the team and fined it a record US$1 million.

In other high-profile dismissals, the “shoot first and ask questions later” philosophy has appeared to varying degrees. The CBC acted relatively quickly in terminating Jian Ghomeshi, who has yet to be convicted of any wrongdoing. The BBC turfed one of its biggest stars, Top Gear host Jeremy Clarkson, after he punched a producer in the face.

While discussing the Hydro One incident, a colleague stopped by my office and asked, “Can you really be fired for doing what he did?”

The short answer is yes, you can. At the end of the day, the employer may not have just cause — which means it will have to pay the worker an amount equal to the notice he should have received. If the employee is a union member covered by a collective agreement, the rules are slightly different. An arbitrator could award the worker his job back, substituting the dismissal for a lower penalty such as a suspension without pay.

If the termination gets overturned, then the employer can still say, “Hey, we tried. But our hands are tied.” If the judgment results in a big payout, it’s probably still less of a headache than the PR nightmare alternative.

If you’re sitting in the C-suite and you’re watching the name of your firm being dragged through the mud on the evening news or on social media, it is going to be tempting to pull out the strongest tool at your disposal to make the story go away: Fire the worker, ASAP.

It may not be the best decision, but it sure will feel like the right one at the time.

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