You have probably heard of the Omarosa / Trump story by now. Put simply, reality TV star and former White House special assistant Omarosa Manigault Newman surreptitiously recorded conversations between President Trump and Chief of Staff John Kelly. While we do not know how the recordings were captured, this does raise questions about whether employees can - and more importantly, whether they should - record conversations in their workplace.
In almost all cases, you will be able to terminate the relationship
The recent events in the southern United States involving demonstrations by “white nationalists” (also known as white supremacists or neo-Nazis) have rocked North America. As photos and video of the event have surfaced, many people have made efforts to “out” the participants. This raises a number of questions, but for employers, one question that arises is what you can do when you find out that one of your employees is a white supremacist/racist/neo-Nazi.
In recent years, I have discussed many situations in which individuals have lost their jobs as a result of off-duty conduct. Often, this involves ill-advised comments on social media. In one memorable case, an employee of Hydro One was immediately dismissed after a video of him yelling sexually inappropriate comments at a female news reporter went viral (although he was subsequently reinstated after grievance arbitration).
- So if someone is captured on video chanting races slogans, or supporting racist groups, can they be fired?
- What if your employee is spreading their offensive message around the workplace?
- At the other end of the spectrum, what if you discover an employee’s offensive beliefs, but they’re not public nor are they known by others within the organization?
It is important to remember that as an employer, you have the right to dismiss an employee at any time for almost any reason, or no reason at all. I pause to note that the situation is somewhat different for unionized employees, as well as for non-managerial employees that are federally regulated (although even in that context, “cause” will justify the dismissal).
However, the vast majority of employees in Canada can be dismissed on a without cause basis. Of course, they would be entitled to notice of dismissal or severance pay, but there would be nothing stopping an employer from deciding that they do not want someone with such views in the organization, and terminating the relationship.
When I mentioned above that employees can be let go for “almost” any reason, the primary exception would be dismissals on the basis of grounds protected by human rights legislation. Human rights legislation in Canada does not protect political views, nor would it protect views such as those expressed by the people participating in the events in Charlottesville. As a result, one option is to simply dismiss the employee without cause, pay whatever is required by way of termination pay, and be done with them.
Of course, that may be quite unpalatable for some employers, who will ask whether they have just cause to dismiss the employee. That will become far more complicated. As I have expressed in many contexts, including my book, You’re Fired! Just Cause For Dismissal In Canada, the issue of when just cause for dismissal exists is extremely complex. Every situation must be assessed based upon its own particular circumstances, and the assessment of whether an employer is justified in summarily dismissing an employee will depend not only upon the misconduct in question, but all relevant factors. This is referred to as the contextual context.
Off-duty conduct can give rise to discipline and dismissal in the appropriate context. Typically, that will be true where the conduct impacts either the reputation of the organization, or the working relationship. For example, if one of the demonstrators was identified as an employee of a particular company, presumably that would damage the company’s reputation. Discipline would be warranted, and dismissal might be, once all relevant factors are taken into account. The argument for summary dismissal would be even more compelling if other employees came to management and expressed their discomfort working with this individual, as it would have a clear impact on the working relationship. That said, there’s at least one case where similar circumstances were found not to just cause for dismissal.
In EV Logistics v. Retail Wholesale Union, Local 580, the employer received an anonymous email from an employee concerned about the contents of a blog that apparently belonged to another employee. This blog was, essentially, a neo-Nazi blog expressing support of Nazi Germany through pictures and statements. The blog also included the employer’s name and pictures of the grievor while at work. As a result, his employment was terminated.
The employee with the blog grieved the termination, apologized and withdrew all entries from his blog. His grievance was successful and he was reinstated.
That decision is still somewhat surprising to me, although the wording indicates that the judge seemed to take the view that the plaintiff was more of a naïve kid than an evil racist, and that seems to have been a large part of the reason for the decision. I suspect that in other circumstances, similar fact patterns would lead to a conclusion that the employment relationship had been irreparably harmed.
So what can you do if you discover that one of your employees is a neo-Nazi or white supremacist? In almost all cases, you will be able to terminate the relationship. The only question will be whether you have just cause to do so, or whether you will have to do so without cause basis and provide them with some severance pay.
Originally Published by Canadian HR Reporter, Thomson Reuters Canada Limited.