Legal Words
HR Professional
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By Sarah B. Hood


When does an employee’s private life become an employer’s business?

Some of the biggest news stories of recent months have involved prominent Canadians whose jobs were put at risk by aspects of their private lives. Toronto’s former mayor Rob Ford is a notable example, as is radio host Jian Ghomeshi, dismissed by the CBC following allegations of violent sexual behaviour.


But conflicts between work and private life are no longer limited to those in high-profile jobs. The explosion of social media now puts almost every employee in the public spotlight. For instance, Sunith Baheerathan, an employee at a Mr. Lube outlet in Vaughan, Ont., was fired in 2013 when he used Twitter to call for drug dealers in the vicinity to drop in on his workplace. (Unfortunately for “@Sunith_ DB8R”, the tweet went viral after York Regional Police spotted the message and responded “Awesome! Can we come too?”)


Two Toronto firefighters, Matt Bowman and Lawaun Edwards, were fired for tweeting sexist comments; last November, arbitrators recommended that Edwards should be rein- stated, but upheld Bowman’s dismissal.

Where should employers draw the line regarding unacceptable behaviour outside the workplace?


“It depends on the position and the type of business that the company is engaged in,” said Kristin Taylor, partner with Cassels Brock and Blackwell LLP. “If you have somebody on the manufacturing floor who’s posting pictures of himself drunk on weekends, but he comes in sober to work, that’s okay. But maybe if he’s drinking Budweiser and he works for O’Keefe, that’s a problem; it all depends on context.”


Taylor is seeing “a lot of cases” involving employees venting feelings about an employer or their coworkers on Facebook.


“That kind of posting has an impact on the workplace and can constitute cause for termination,” she said. “Using Facebook to complain about your manager isn’t going to protect you any more than if you were in the lunchroom, and it’s not good enough to take it down when the damage has been done.”


Also damaging, she says, are cases “where employees have said they’re off due to injury and then post themselves drinking in Mexico.” Taylor’s best advice for employees is never to post anything on social media “that I wouldn’t want my mother to read – or my manager.”


But issues are not always clear-cut.


“Ideally, you would be able to draw a very bright line between your personal life and your private life,” said HR consulting expert Susan Hodkinson, chief operating officer at Crowe Soberman LLP. “However, in the age of social media, there’s really no bright line anymore.”


For instance, when it comes to expressing political opinions, “If you are a management person and you make it clear that you have very strong political positions, does someone who’s reporting to you feel compelled to support the same parties or to hide their own political beliefs? These aren’t black-and-white issues; they’re very tricky for management,” said Hodkinson.


Hodkinson also says that one of the frequent uses of social media is to either praise great service or, more often, criticize poor service. She recalls a situation in which a staff person at a law firm “blasted the poor service they received,” unaware that the company they were complaining about was an important client of the firm.


One area where there is no room for negotiation is “[behaviour] associated with any kind of criminal conduct.” Employers should protect themselves with a policy and an employment agreement stating that “a criminal conviction is cause for a termination,” said Taylor.


“The one thing that has to be considered is that there are different laws that may protect people who have criminal convictions, depending on where they are in Canada,” she said. “In British Columbia and Prince Edward Island, [the criminal offence] has to be specifically related to employment. Ontario does not have that requirement, so you can discriminate according to criminal conviction if they have not been pardoned; I frequently see employers in Ontario go beyond what would be considered work conduct in terms of any kind of criminal behaviour that could affect [the company].”


She cites a decision involving Linamar Corporation of out of Guelph, where an employee was fired for cause after being charged but not convicted with possession of child pornography. The court decided that “the charge in and of itself constituted cause for termination because it reflected and prejudiced Linamar’s interest in that community. That’s probably the leading case in completely off-duty conduct [affecting job status],” said Taylor.

“[For employers seeking to protect themselves,] there are, broadly, three important issues,” said Hodkinson. “The first is to actually have articulated policies with respect to what is acceptable behaviour in the workplace and the use of social media in the workplace. If a particular industry or company has very specific requirements [such as security or confidentiality], they need to be articulated.”


Second, she says, these policies must be extremely clearly communicated throughout the workplace. Finally, there has to be a management commitment to upholding the spirit of those policies.


“All organizations, certainly in Ontario, [have been] required to have policies that prohibit workplace harassment since June of 2010,” said Taylor. “When something is brought to HR’s attention, they need to follow back the rumours, referencing the policy and assuring employees that if there is a problem, it will be dealt with. You always have to give the person a chance to explain themselves; due process and fairness are absolutely essential.”


Is there a likelihood that former employees will sue for wrongful dismissal?


“Unionized employees can’t sue, but they can bring a grievance,” she said. “Non-unionized employees can always sue for wrongful dismissal, regardless of whether there’s any merit – with the proviso that if they are found responsible, they are responsible not only for their own legal costs but also for a share of their employer’s.”


Essentially, organizations need to be sure to have written policies that are communicated and understood by their employees.


“The key for small business is to have these policies in place,” said Hodkinson. “There are lots of people who do this work. It’s a small investment; it’s like buying property and casualty insurance.”


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