Stirring up the past​

Trudeau’s ‘brownface’ controversy highlights difficulties employers can face with employees’ bad behaviour

Stirring up the past​

By Jeffrey R. Smith

Sometimes the past catches up with you, particularly in terms of behaviour or misconduct. 

Right in the middle of the 2019 federal election campaign, Justin Trudeau’s past caught up with him. A photo was released that depicted the Prime Minister in 2001 at a fundraiser for the private school where he taught at the time. 

The theme of the party was “Arabian Nights” and the photograph depicted Trudeau dressed up as the character Aladdin — including makeup to make his skin look darker, which is being called “brownface” in reference to the raciallinsensitive practice of “blackface” where white people put on dark makeup to portray people of colour

This incident — and two similar ones involving Trudeau putting on dark makeup — happened when hewas younger and many years before he became a politician. Many people don’t consider this behaviour appropriate for someone in his role and though he wasn’t our national leader at the time, it may indicate the type of person he really is — and that type of person isn’t qualified for the job. 

But others may want to believe Trudeau has grown since then and this behaviourdoesn’t necessarily reflect on who he is now and his ability to fil his current role.

Either way, most can agree Trudeau’s actions were ill-advised and insensitive. And they raise an issue that employers can encounter. If an employer finds out about past, inappropriate behaviour by an employee that is contrary to the employer’s values, can that be grounds for dismissal? Is it considered dishonesty if the employee didn’t necessarily lie about it, but alsodidn’t disclose it because it’s in the past?

Off-duty misconduct can be a tricky area for employers. There have been many cases where an employee is fired for troublesome behaviour outside of work. Some of the dismissals stuck, while others were ruled wrongful dismissal. 

It usually comes down to whether the off-duty behaviour strikes at the heart of the employment relationship and the trust that it involves, as well as whether the employer’s reputation — and therefore the business — would be harmed if the employee’s past behaviour and his association with the employer became public knowledge.

As far as past convictions, that’s a protected ground from discrimination under human rights legislation. Which means as long as a past conviction doesn’t directly relate to the job, it’s not a ground for dismissal. 

In the 2018 decision X v. Reitmans, 2018 QCTA 2357, the Quebec Administrative Labour Tribunal found an employee who was convicted of molesting a child was wrongfully dismissed. His job duties of overseeing a distribution centre for a retail company had no connection to the charges and there were no children in the workplace. Many might think dismissal was a natural conclusion in the circumstances, but that wasn’t the case.

However, bad behaviour, especially raciallymotivated behaviour, can serve as cause for dismissal. In 2017, a Hamilton construction worker thought it would be funny to fly a Confederate flag from his truck at work. His employer, Yoke Group, immediately fired him. The dismissal stood up because the misconduct not only occurred while he was an employee, but at the workplace — directly linking the employee, his racist action, and the employer.

And bad behaviour in the past can still provide cause for dismissal. Back in 2007, the Ontario College of Teachers revoked the licence of a former teacher who nearly three decades earlier founded an organization and newsletter that claimed our country’s crime and social problems were the result of allowing visible minorities into Canada. 

He was also involved with known racist groups such as the Heritage Front. The college referred to a 1996 Supreme Court of Canada decision that stated off-duty conduct that could poison the school system could be reason not to employ a teacher.

The position of teacher is one of several that have a higher bar for personal conduct than other jobs due to their responsibilities and level of trust. The role of prime minister can probably be included in that group. 

Everyone has made mistakes and bad decisions in their past. Whether those decisions and mistakes should be left in the past or used as an indicator of who an employee is now — and their ability to do their job — is something employers have to carefully consider when the sins of the past come to light.


Latest stories