termination clause), there is nothing stopping an employer from
deciding that they do not want someone with such views in the or-ganization,
and terminating the relationship.
Understandably, the idea of paying severance to an employ-ee
that they are getting rid of due to their offensive views will be
unpalatable to some employers. They can instead consider wheth-er
they have just cause to dismiss the employee, which would
eliminate the need for notice or severance. However, the issue of
when just cause for dismissal exists is extremely complex. Every
situation must be assessed based upon its own particular circum-stances,
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.
Often, people assume that you cannot be fired for what you do
away from work. There is also a common view that freedom of
speech precludes employers from dismissing employees for ex-pressing
their views. Both are untrue. While the general rule is
that what you do on your own time is your own business, the law
has always allowed for discipline and dismissal for off-duty con-duct
in the right circumstances. And freedom of speech refers to
criminal prosecution for what someone says; it does not mean that
people are free from all consequences.
Off-duty conduct can justify discipline or dismissal 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 war-ranted,
up to and including dismissal, 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 constitute just cause for dismissal.
In EV Logistics v. Retail Wholesale Union, Local 580, the em-ployer
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 racist statements.
The blog also included the employer’s name and pictures of the
grievor while at work, clearly identifying him as an employee of
EV Logistics. The employee was suspended and later dismissed.
In the termination letter, the employer noted that the blog posts
were “inherently reprehensible” and fundamentally inconsistent
with the values of Canadian society.
The employee grieved the termination, stating that he nev-er
thought that what he wrote on his blog would impact his job.
He sent a lengthy written apology to his supervisor, and also ex-plained
to the employer that he suffered from depression and had
experienced significant challenges in his life. The arbitrator found
that the employee’s young age (he was only 22 at the time of the
arbitration) and the difficult personal challenges he had faced in
his life were important mitigating factors to be considered in de-termining
the appropriateness of the disciplinary action. The fact
that the grievor had immediately apologized and removed the blog
entries as soon as he realized his wrongdoing were also considered.
Ultimately, his grievance was successful and he was reinstated.
The result in EV Logistics is surprising to many people. However,
it is important to recognize the unique factors at play in this case.
It is significant that the arbitrator appeared to view the grievor as
more of a naïve kid than an evil racist, and the employee himself
did act immediately to attempt to rectify the issues once they were
brought to light. We suspect that in other circumstances, a similar
fact pattern would lead to a conclusion that the employment rela-tionship
had been irreparably harmed.
What about an individual’s right to hold their own political and
moral views? The caveat that an employee can be let go for “almost”
any reason includes dismissals on the basis of grounds protected
by human rights legislation, which are prima facie discriminatory
and unlawful. Human rights legislation precludes discrimination
based on a number of grounds such as gender, religion, ethnicity
and disability. Many provinces, including Ontario, do not identify
an employee’s political beliefs as a protected ground. In these cas-es,
employers can simply dismiss an employee without cause, pay
whatever is required by way of termination pay, and be done with
them. However, this is not the case in all jurisdictions. The British
Columbia Human Rights Code, for example, specifically prohib-its
discrimination in employment on the basis of political belief.
The white nationalists could therefore argue that their views are
political beliefs and they cannot be fired for them. Depending on
what law governs the working relationship, simply dismissing an
employee without cause could expose the employer to the risk of a
human rights complaint.
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
pay some severance. n
Stuart Rudner is the founder of Rudner Law. Brittany Taylor is an
associate at Rudner Law.
OFF-DUTY CONDUCT CAN JUSTIFY
DISCIPLINE OR DISMISSAL
WHERE THE CONDUCT IMPACTS
EITHER THE REPUTATION OF
THE ORGANIZATION, OR THE
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32 ❚ OCTOBER 2017 ❚ HR PROFESSIONAL