Daily BrewFHRITP incident: Canadian workers can get fired for saying a lot less, experts say
There’s nothing quite as damning as the wrath of the supreme court of public opinion. Do something abhorrent on camera like say, kicking a dog or making derogatory remarks in a reporter’s camera, and the all-seeing Internet might select your case to be tried via social media shaming.
Which could cost you your job, as a Hydro One employee at a Toronto soccer game learned when CityNews reporter Shauna Hunt challenged him and his friends to explain why they made derogatory remarks.
“We’re living in a fishbowl these days and everything we do and say is disseminated,” Natalie MacDonald co-founding partner of Rudner MacDonald LLP, and author of Extraordinary Damages in Canadian Employment Law told Yahoo Canada.
And where employee rights are concerned, she says, if you’re doing something harmful and it’s caught on camera, you really don’t have a lot of rights.
“That incident (at the soccer game) was reprehensible, that was sexual harassment of a female reporter and that was discriminatory and contrary to the human rights code and I applaud Hydro One for terminating this person’s employment,” says MacDonald.
In the Canadian legal system, an employee can be terminated for just cause if their conduct: detrimentally affects the employer’s reputation; renders the employee unable to properly discharge his or her employment obligations; causes other employees to refuse to work with him or her; or inhibits the employer’s ability to efficiently manage and direct the production process. Elements like how long you’ve been with the company and past infractions also come into play.
But there’s a lot at stake for employers when it comes to firing someone with or without cause, says Howard Markowitz, partner at Du Markowitz LLP.
“If you’re terminated without cause you’re entitled to severance pay,” says the employment lawyer. “Sometimes that can be a lot of money if you’re in a senior role, so there’s a lot of incentive for the employer to try and throw a bunch of stuff at the employee in court and say ‘well, here is a list of things that you’ve done wrong’ and if some of that sticks then they might not have to pay anything at all.”
While most employment contracts have a Code of Conduct written into them, in the past these usually only applied to work hours. Companies also have strict rules about who can represent the company publicly, and how to communicate and behave when speaking publicly on the company’s behalf.
“Social media has changed all of that,” says Peter Harris, chief editor at Workopolis. “People are associated with where they work (and) employer brands are associated with who works there. And that’s where it becomes the employer’s business what you do and say at any time – if it starts to hurt their brand – and therefore bottom line.”
Harris suspects employment contracts are going to change to reflect this, if they haven’t already done so.
“That’s our prediction – more clauses about employee behavior – and potential harm to the company’s reputation at all times will be written in to future contracts,” he adds.
And as the legal definition of just cause states, you don’t have to be caught on camera yelling crude things at reporters to get the boot from your employer.
“Suppose an employee calls in sick and the employer goes on Facebook and finds out that they’ve gone out and have a great time water-skiing that day it could be just cause (for termination),” says MacDonald.
If it’s the first time, well the employer doesn’t really have reasonable grounds to fire you but if it’s something you’ve been caught doing several times, your employer could try to convince the court it’s just cause.
“Employment relationships are built on honesty and where an employee is displaying dishonest conduct that really strikes at the heart of the employment relationship,” says MacDonald adding employees need to realize that what they do outside of the workplace is becoming just as relevant as inside. “I know that sounds trite but it’s very true and I find employees don’t appreciate that these days because they think ‘well, look I’m off duty, I’m away from the company I can do whatever I want’ – not if it’s caught on camera.”
