The world changed on October 7, 2023, when Hamas launched an unprovoked attack on innocent Israeli citizens. The massacre of that day has led to an all-out war between Israel and Hamas, and a worldwide explosion of anti-Semitic and Islamophobic behaviours.
While a few years ago it may have been unthinkable, we now frequently see blatant anti-Semitic conduct along with calls for violence against Jews. So, what can an employer do if one of their employees makes inappropriate comments online or participates in protests or assemblies which espouse offensive views?
Off-Duty Conduct can Lead to Dismissal
I recently recorded a series of TikTok videos in which I discussed the concept of disciplinary action arising out of off-duty conduct. This is not a new issue: I have been discussing potential employment consequences of off-duty conduct for years – see, for example, this article for Canadian HR Reporter in 2015. The quick summary, as I explain in the first video, is that what you do on your own time is generally your own business, although the law has always provided for discipline and discipline in limited circumstances.
As set out 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 when:
- The employee’s conduct harms the company’s reputation or product.
- The employee’s behaviour renders the employee unable to perform their duties satisfactorily.
- The employee’s behaviour leads to refusal, reluctance, or inability of the other employees to work with him or her.
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
- 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.
As I often explain, if the off-duty conduct impacts the employer or the employment relationship, it may warrant disciplinary action.
You Can’t Dismiss for Human Rights Grounds
The discussion above refers to dismissals for cause, in which case the employee is not entitled to notice or pay in lieu (severance). However, most employees do not have job security; as a result, they can be dismissed on a without cause basis at any time and for almost any reason, as long as they are provided with appropriate notice of compensation.
As I explain in the second TikTok video, it is unlawful for a dismissal to relate, even partially, to a ground protected by human rights legislation, such as disability or sexual identity. However, most jurisdictions do not protect political views. In general, you can be let go if your employer does not approve of your off-duty behaviour; however, you will be entitled to severance unless the conduct rises to the level of just cause for dismissal.
“Freedom of Speech” Does Not Apply
The third of the TikTok videos addresses a common misconception that we hear every time a story breaks in which someone is dismissed for something they say (online or otherwise). Whenever that happens, we hear objections that “freedom of speech” should protect people from losing their job for something they say. As I wrote in an article entitled Freedom of speech doesn’t mean freedom from consequences:
Our charter guarantees freedom of speech, though even that is limited in certain circumstances. This guarantee means that, with certain exceptions, an individual will not be subject to criminal prosecution or conviction as a result of what they say. Of course, it has been limited by hate laws and other legislation. However, even accepting the general principle that what you say cannot be used against you, this does not apply to every context. Rather, it protects individuals from criminal prosecution. It does not mean you cannot lose your job, or be suspended from school, or suffer any adverse consequences.
Pith and Substance
It is truly disheartening to see the offensive conduct that is on display around the world. Whether it is a call to kill all the Jews or deport all the Muslims, such comments are unacceptable and can lead to the loss of one’s job.
For my recent interview in the mainstream media on this issue; click here.
