Discipline for Off-Duty Conduct

In my latest Canadian HR Law blog post, I tackled the controversial issue of whether an individual can be disciplined or dismissed for what they do while off-duty. The original post can be found here, but an expanded version is below.

So can you be fired for something you do on your own time, off-duty and away from work?

The simple answer is yes, you can, in the right circumstances.

Even if you are not explicitly or implicitly representing your employer?

Yes. In the right circumstances.

Even if your behaviour has nothing to do with work and does not involve your colleagues or supervisors?

Again, yes. In the right circumstances.

Is this a new law?

No. The law has always provided for discipline or dismissal as a result of off-duty conduct, in limited circumstances. However, the issue rarely came up before the advent of social media, cell phone cameras and YouTube. Now, a new situation seems to arise every week involving an employee doing something while off-duty that leads to workplace consequences.

The issue comes up far more often in the United States, as their population is so much larger than ours. However, even in Canada, we have seen dismissals for off-duty conduct including:

  • A Toronto Symphony Orchestra performance by a Ukrainian-born pianist cancelled due to comments she made on Twitter regarding the conflict between Russia and Ukraine;
  • Two Toronto firefighters dismissed due to inappropriate comments and Twitter, and a third due to FaceBook comments;
  • Jian Ghomeshi, star radio host of our national broadcaster, fired due to harassment and sexual assault which came to light after his miscalculated FaceBook post;
  • An Ontario Hockey League referee suspended after posting insulting comments about the ladies of Sault Ste. Marie on Twitter;
  • Two Ontario Hockey League players also suspended due to offensive comments about women on Twitter; and
  • Perhaps most offensive of all, an individual who wrote “Thank God the b*tch is dead” on a Facebook wall created in memory of a 15 year old girl who committed suicide after years of bullying.

Recently, headlines, talk radio and social media have been focused on a video of an incident outside a Toronto FC soccer game in which several people, including Hydro One employee Shawn Simoes, followed the ridiculously offensive trend of heckling female reporters on air by yelling “F*ck her right in the p*ssy”. The trend is known by the acronym FHRITP.

I have repeatedly been asked by the media to discuss this case, and discipline for off-duty conduct more generally. You can see our comments on our Rudner Law In The Media page.

Mr. Simoes’ conduct was completely inappropriate and offensive. Reporter Shauna Hunt admirably confronted the FHRITP “group”, demanding to know why they did it and why they thought it was funny. Mr. Simoes dug himself even deeper into the hole he had created by defending his conduct repeatedly.

Ultimately, it became known that Mr. Simoes works for Hydro One and is on the “Sunshine List”, which means that he makes more than $100,000. The incident has become synonymous with Hydro One, which has an obvious impact on its reputation even though Mr. Simoes’ disgusting behaviour had nothing to do with his work or his employer. Mr. Simoes was quickly fired. We do not know if it was with or without cause.

Two Types of Dismissal in Canada

In Canada, there are only two types of dismissal: with cause or without.

The vast majority of dismissals are without cause (including downsizings, reorganizations and the like), in which case the employee is entitled to notice of dismissal or pay in lieu thereof. The amount of notice, or pay in lieu, is based upon a number of factors which I have discussed in previous blogs.

However, if someone is dismissed with cause, they are not entitled to anything; no notice, no severance, no pay in lieu. It is obviously a harsh result, which is why some Judges have referred to it as the “capital punishment of employment law”.

I wrote a book on the issue of when employees can be dismissed for cause. It is updated twice a year, which means that I have read thousands of cases on the subject. It is a complicated issue, and the only absolute rule is that every case must be considered based upon its own particular circumstances, which includes all relevant factors. In other words, an employer cannot consider the alleged misconduct in isolation.

The threshold for establishing just cause for dismissal is quite high, as the punishment must be a proportionate response. In assessing whether just cause is warranted, the alleged misconduct cannot be considered in isolation; all relevant circumstances must be taken into account. This is something that comes as a surprise to many: the misconduct is not to be considered in isolation. Additional factors to be considered include:

  • The individual’s length of employment;
  • The individual’s disciplinary record;
  • The nature of the individual’s position;
  • The degree of trust required;
  • The individual’s response when confronted with allegations of misconduct;
  • Any mitigating factors; and
  • Anything else that relates to the employee’s honesty or trustworthiness or the viability of continuing the employment relationship.

Proportionality is a fundamental principle in this context, and in many cases, courts will conclude that discipline was warranted but that summary dismissal was too harsh. That said, there are frequent examples of dismissals that held up under judicial or arbitral scrutiny. As I often say, “just cause is not a lost cause”; summary dismissal will be upheld in appropriate circumstances.

In many cases, employers will learn of misconduct and make the practical decision that they do not want to continue employing the individual in question. That seems to be what happened to Mr. Simoes. He may or may not have been offered a severance package; we do not know. But from a public relations standpoint, Hydro One is able to say that they do not tolerate this type of behavior and that they will act swiftly to deal with it. That case is an anomaly.

Typically, when we advise employers regarding discipline and dismissal, our advice is not to react in haste; our firm recommends a proper investigation and consideration of the issues before a decision regarding discipline is made. However, in some circumstances, other considerations trump the legal ones.

We often receive calls from employees that have been accused of misconduct, or are the subject of investigation. We can help them to respond and protect their rights. Among other things, we advise them that Honesty in the Course of a Workplace Investigation Pays Off.

Every time a new case like this makes the news, people express their shock and, in some cases, outrage that an individual has lost their job for what they did own their own time. Just a few weeks ago, I and several of my colleagues in the Employment Law Bar offered our comments in the media on this issue in relation to the cancelled TSO concert. Time and time again, I have warned people to be careful what they do at all times, since off-duty conduct can have workplace consequences. Yet the message does not seem to be sinking in.

Once again, the dismissal of Mr. Simoes has led to significant public debate. Many have insisted that his conduct took place while off-duty and had nothing to do with his job. Others have focused on a misguided view of “freedom of speech”, suggesting that it provides for freedom from all consequences.

Nothing Funny About Sexually Harassing a Comedian

Remarkably, it did not take long for a new story of dismissal for off-duty conduct to replace Mr. Simoes in the headlines. At the recent Ontario Printing and Imaging Association’s Excellence in Print awards night, Jen Grant was the comedian hired to entertain the crowd. Within minutes of starting her routine, she was heckled with abusive, sexually harassing comments. Given that this was a corporate gig and she had to be “clean”, Ms. Grant’s ability to fight back was limited. After the offensive comments continued, Ms. Grant left the stage in tears.

Several members of the audience confronted the heckler, who was identified as an employee of TC Transcontinental. According to media reports, he has been suspended pending the outcome of the company’s investigation. Like Mr. Simoes, he may lose his job, or at least be disciplined, for his off-duty conduct. Notably, since this was an industry event, there is a stronger connection between his conduct and his employment.

What You do on Your Own Time is Your Own Business…Usually

The fact is that our laws start with the assumption that what an employee does on their own time is their own business. However, there have always been exceptions. As set out back in the 1967 decision in Re Millhaven Fibres Ltd. and Oil, Chemical and Atomic Workers I.U Loc 9-670, discipline can be imposed for off-duty conduct where

  1. The employee’s conduct harms the company’s reputation or product.
  2. The employee’s behaviour renders the employee unable to perform their duties satisfactorily.
  3. The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him or her.
  4. The employee is guilty of a serious breach of the Criminal Code, causing injury to the general reputation of the company and its employees.
    OR
  5. The employee’s conduct makes it difficult for the employer to properly carry out its functions of efficiently managing its work and efficiently directing its workforce.

In short, if the conduct impacts the employer or the employment relationship, it can justify discipline.

It is critical to remember that the considerations above relate to dismissal for cause. However, most employees in Canada (unless they are unionized) can be dismissed at any time, for almost any reason, as long as they are provided with sufficient notice or pay in lieu. As a result, an employer is perfectly entitled, in most cases, to decide that they do not approve of an employee’s conduct and that they will therefore let them go. Of course, certain grounds are protected by human rights legislation, so an individual cannot be fired due to their gender, religion, disability, etc.

The bottom line is that whether you agree with it or not, off-duty conduct can lead to discipline and dismissal, either with or without cause. And the same conduct that may have gone unnoticed in the past may now have consequences, due to the fact that it may “go viral” and attract unwanted attention for you and your employer. The “Hydro One Incident” is a great example of this. Mr. Simoes did something stupid that, in the past, may have blown over quickly. In this case, the video became a social media sensation, his employer learned of it and decided that it wanted nothing more to do with him. As a result, his long-term career with Hydro One was destroyed in an instant.

Unfortunately, our firm has been called upon many times in recent years to assist employers in handling off-duty conduct, as well as to help employees who find themselves the subject of discipline as a result of what they do away from work.

Stuart Rudner

I am the founder of Rudner Law. In 2016, 2017 and 2018, I was selected by my peers for inclusion in ‘The Best Lawyers in Canada’ in the area of Employment Law and have been repeatedly named in Canadian HR Reporter’s Employment Lawyers Directory (a comprehensive directory of the top employment law and immigration law practitioners in Canada), and was also named one of Canada’s top Legal Social Media Influencers.