Hot Mic Catches Ref Offside

Previously printed in The Lawyer’s Daily, a LexisNexis Canada publication.

In March, referee Tim Peel was captured on a hot mic boasting about calling a penalty because he “wanted to.” In less than 24 hours, Peel’s employment with the National Hockey League (NHL) had been terminated. In its statement, the NHL said “Nothing is more important than ensuring the integrity of our game.”

The broader questions asked by Peel’s termination is whether or not his conduct deserved such harsh discipline. If you are a Detroit Red Wings fan, you may find Peel’s conduct less egregious than if you root for the Nashville Predators.

There is another layer to this issue with Peel. Hockey fans are familiar with the idea of “makeup calls.” This is a scenario where a penalty will be called against Team A for a minor infraction (or no infraction at all) in order to balance out a previous penalty that was called against Team B.

This raises the question if Peel was being terminated for calling a “makeup” penalty or if he was terminated for getting caught. The fact is, that makeup calls happen all the time in hockey. As a Canucks fan, I’ve been complaining about these for as long as I can remember.

In determining whether an employee has been terminated for cause, there must be “proportionality between an employee’s misconduct and his or her termination, having regard to the whole context of the parties’ employment relationship” (Wrongful Dismissal, David Harris, Thomson Reuters).

“Dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship” (Streng v. Northwestern Utility Construction Ltd. [2016] B.C.J. No. 1173 at para. 56, citing Dowling v. Ontario (Workplace Safety and Insurance Board [2004] O.J. No. 4812). This involves the consideration of:

i. determining the nature and extent of the misconduct;

ii. considering the surrounding circumstances; and

iii. deciding whether dismissal is warranted.

Important consideration will also be given to condonation, if it exists. Condonation is a defence to termination for just cause. For example, if an employee routinely takes extra long breaks, and the employer knows about it and says nothing, then the employer has condoned the employee’s behaviour. The employee would be able to use condonation as a defence, should the employer decide to enforce the rules around break length and terminate the employee’s employment.

As it concerns Peel, some of the considerations in the decision to terminate could have included the reputation of the league; the need for integrity; the public nature of his comments; and that the misconduct strikes at the heart of Peel’s employment as a referee in the NHL. However, one would be surprised if the issue of condonation was not raised between the parties, or if it was a factor in any settlement that Peel receives from the NHL.

The circumstances surrounding Peel’s termination from the NHL has some general application to workplaces that have adjusted to COVID-19 by moving employees to a work-from-home setup, which inevitably requires the use of web cams and mute buttons on a daily basis.

In your workplace, a similar scenario may occur if a frustrated executive forgets to press “mute” on the Zoom call before cursing or making a disparaging comment about a member of the board. This scenario may occur if an employee forgets their web cam is on and rolls his eyes during a meeting. In this “new normal” where employers and employees are welcomed into one another’s homes via videoconference, workers are surrounded by “hot mics.” Much can go wrong (“I am not a cat,” etc.)

Not all mishaps are so innocent or meme-worthy. Employers may want to consider creating or adding to an existing policy to include expectations for conduct on video platforms. In addition, liabilities for misconduct during videoconferencing should be explained to members of management who may not be as familiar with the technology.

Regardless of whether bad behaviour is happening on a hot mic or during in-person operations, be sure to consider if the discipline is proportionate to the misconduct and if there are other circumstances, such as condonation, that should be factored in the decision to terminate a worker.

The full article is also available here.

Working primarily as a litigation lawyer with Roper Greyell, Mike Hamata assists employers with discipline and policy grievances, wrongful dismissals, employment standards complaints and collective bargaining. E-mail him at mhamata@ropergreyell.com. Katelin Dueck is an articling student at Roper Greyell. E-mail her at kdueck@ropergreyell.com.