Policies and Procedure

What to do if your employee is “one of them”

By Stuart Rudner and Brittany Taylor

It is hard to believe that in 2017, an article discussing the rights of employers who learn that their employees are spending their off-duty hours at neo-Nazi rallies and demonstrations would be considered timely and relevant. Unfortunately, the reality is that recent events in the United States involving demonstrations by

“white nationalists” (also known as white supremacists or neo-Nazis) have made it necessary for employers to consider what they would do if such a situation were to arise. In the days following the most infamous demonstration, several participants were “outed” online and in at least one case, found themselves out of a job.

So as a Canadian employer, what can you do if or when you find out that one of your employees is a white supremacist/racist/neo-Nazi?

While this may seem like a novel issue, employers have long had to deal with the ill-advised off-duty actions of their employees. In recent years, there have been a few memorable cases in which individuals have lost their jobs as a result of off-duty conduct, often – though not always – online. Most people will remember the employee of Hydro One who was immediately dismissed after a video of him yelling sexually inappropriate comments at a female news reporter went viral (although he was subsequently reinstated following a grievance arbitration). 

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 (keep in mind that the situation is somewhat different for unionized employees as well as non-managerial employees in federally regulated workplaces). Employees terminated on a without-cause basis are entitled to notice of dismissal or severance pay. Other than this financial burden (the amount of which will depend on a number of factors, including whether or not the employee has an enforceable employment agreement with a termination clause), there is nothing stopping an employer from deciding that they do not want someone with such views in the organization, and terminating the relationship.

Understandably, the idea of paying severance to an employee that they are getting rid of due to their offensive views will be unpalatable to some employers. They can instead consider whether 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 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.

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 expressing 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 conduct 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 warranted, 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 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 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 never thought that what he wrote on his blog would impact his job. He sent a lengthy written apology to his supervisor, and also explained 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 determining 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 relationship 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 cases, 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 prohibits 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.

Stuart Rudner is the founder of Rudner Law. Brittany Taylor is an associate at Rudner Law.