Oh No That Is Our Employee In the Headlines!

February 2019

Article by: Gregory J. Heywood

Reputation is only a candle, of wavering and uncertain flame, and easily blown out, but it is the light by which the world looks for and finds merit. – James Russell Lowell

Imagine one day you were reading the weekend newspaper and discover one or more of your employees is engaged in activities that are not consistent with the good standing of the employer. What do you do?

Off-duty conduct has become an increasing source of concern for employers. Social media can bring off-duty conduct that might have flown under the radar in the past to the forefront. Not only is there a higher probability of embarrassing or ill-considered off-duty conduct being captured by social media and then by the mainstream media, but there are also no private social media comments. It is surprising in today’s age that employees would post inappropriate comments about clients and/or their employer on social media and not consider the implications on their employment.

One example of an inappropriate social media tweet resulting in a termination is Toronto (City) v. Toronto Professional Firefighters Association, Local 3888 (Bowman Grievance)[i].  In this case a firefighter made numerous derogatory and offensive tweets about women, minorities, disabled individuals, the homeless, and people in the LGBTQ community. The Grievor was easily identified as a firefighter as he was wearing Toronto Fire Service gear in his Twitter photo.  These tweets caught the attention of the National Post and were published in an article about issues the City was having recruiting female firefighters.

The termination was upheld by Arbitrator Elaine Newman as she concluded that the Grievor’s conduct rendered him unable to conduct himself in the manner expected of his uniform. In her view, a reasonable and fair-minded member of the public, if appraised of the facts, would consider the Grievor’s continued employment to damage the reputation of the employer.

In this decision Arbitrator Newman applied the often cited test for discharge for off-duty conduct as stated in Millhaven Fibers Ltd. v. Atomic Workers International Union, Local 9–670.[ii] That test requires that the employer prove that:

  • the conduct of the Grievor harms the company’s reputation or product;
  • the Grievor’s behaviour renders the employee unable to perform their duties satisfactorily;
  • the Grievor’s behaviour leads to refusal, reluctance, or inability of the other employees to work with the Grievor;
  • the Grievor has been guilty of a serious breach of the Criminal Code (or of a Human Rights policy or code) and thus rendering the Grievor’s conduct injurious to the general reputation of the company and its employees; and/or
  • the Grievor’s behaviour places difficulty in the way of the company properly carrying out its function of efficiently managing its business and efficiently directing its workforce.

Lessons for Employers

The following are among the steps an employer should take, and considerations an employer should take into account, when it becomes aware of a report of off-duty conduct that may harm the reputation of the employer:

  1. Interview the employee(s) as to the circumstances and scope of the off-duty conduct.
  2. Assess from the perspective of a member of the public, the propriety of the off-duty conduct and the impact of that conduct on the reputation of the Employer.
  3. Determine whether there has been a nexus established between the off-duty conduct and the Employer.
  4. Assess the conduct of the Grievor: how involved were they, how obvious is the reputational risk?
  5. Consider whether the Grievor’s conduct interferes with their ability to do their job.
  6. Consider any other mitigating and aggravating circumstances.
  7. Finally, assess the viability of continued employment.

The appropriate range of discipline is wholly contingent upon a nuanced assessment of the above noted considerations.  Sometimes expectations need to be clarified, often discipline is warranted, and occasionally termination of employment is appropriate. As Voltaire remarked: sometimes, “common sense is not so common”.

[i]  [2014] OLAA No 507 (Newman) [Bowman].

[ii]  [1967] O.L.A.A. No.4.