Twitter has been ablaze over the past week after CityNews reporter Shauna Hunt confronted a group of imbeciles at a May 10 Toronto FC game for mimicking a viral trend seen across North America, in which on-air reporters are harassed with the phrase, “F— her right in the p—-.”
One of the individuals involved was quickly identified as Shawn Simoes, an Hydro One employee. Hydro One quickly moved to terminate Simoes and Hydro One corporate affairs director Daffyd Roderick told The Toronto Star: "Respect for all people is engrained in the Code of Conduct and in our Core Values and we are committed to a work environment where "discrimination or harassment of any type is met with zero tolerance."
The swift action by Hydro One is commendable. Unfortunately, employers face tremendous hurdles when terminating employees for “off-duty conduct.” Arbitrators and courts have considered five broad factors as follows:
It is not necessary for an employer to show that all of these criteria exist, but that, depending on the impact of the offence, any one of the consequences may warrant discharge for cause (See for example: CUPE, Local 1117 v New Brunswick (Department of Education)).
Broadly speaking, the cases suggest that:
While all of this sounds straightforward, employees terminated for criminal convictions involving armed robbery, sexual assault (see for example: Hendrickson Spring Stratford Operations v USWA, Local 8773), molestation and possession of child pornography have all been reinstated to their positions. In fact, absent the employee having a public position of trust, it has been difficult for employers to uphold terminations for “off-duty conduct.”
While they are deplorable, Hydro One has a good set of facts to establish just case. They were quickly identified publicly as the employer of Simoe and they can argue that they cannot be expected to tolerate the behavior exhibited by Simoe and his pals (or the reputational impact of same. Hopefully, cases like this will assist in Courts and Arbitrators reassessing the impact of an employee’s off-duty conduct, in the age of social media.
This article should not be relied upon as legal advice - the comments may not be applicable to you and may not be up to date. If you have any questions, you should contact a lawyer.