In our current digital age there is an increasing blur between personal and work life. As a result of the internet and social media, an employee’s off-duty behaviour is increasingly visible to their employer and the general public. Content can be shared with the world in a matter of seconds on social media and there is seldom a chance it will ever disappear completely. Employees represent the organizations they work for and as a result, the reputation of a company could be at risk when current or potential customers get wind of an employees’ harmful behaviour- even if the behaviour has no association with their work.
Employers are able to fire an employee for any reason so long as the reason is not discriminatory and the employee is provided reasonable notice. However, if an employee is terminated for “just cause” – they are not entitled to any payout. Employees should be mindful that certain off-duty conduct may justify a termination for cause i.e. termination without notice.
Employers can terminate for “just cause” if the employee’s misconduct…
- violates an essential condition of the employment contract
- breaches the faith inherent in the work relationship
- is fundamentally inconsistent with the employee’s obligations to his or her employer
- destroys the employer’s inherent faith in the employee
- adversely affects the company’s business in a material respect
- is a conflict of interest
- breaches trust or the duty of fidelity
- results in serious incompetence to do their job
- is fraudulent
- puts other employees in potential harm
- result in the employment relationship being undermined
Justine Sacco was fired for cause from IAC after she tweeted cutting and racist jokes. Prior to boarding her flight to Cape Town, SA, Justine tweeted “Going to Africa, hope I don’t get AIDS. Just kidding. I’m white!” By the time she got off the plane, her tweet had become the number one trend worldwide on Twitter and was seen by her employer who consequently ended her employment. Justine’s off duty behaviour is cause for termination for several reasons. First, her comments were hateful and insulted an entire race and continent as she reinforced erroneous stereotypes. Secondly, the behaviour fails to reflect the values and ideas of IAC and her boss can no longer trust her. Third, as a result of her invisibility on the internet, IAC would have likely lost clients and competitive advantage as a result of Justine’s comments. Lastly, Justine’s behaviour shows that she lacks common sense and the ability to properly perform her job.
Below are other examples of how employee’s lost their jobs as a result of their behaviour outside of work:
- Hydro One employee Shawn Simoes, was fired after heckling a CityNews reporter at a Toronto FC game.
- Jian Ghomeshi of CBC was fired after facing charges for four counts of sexual assault.
- A barista was fired from All City Coffee in Georgetown after he talked badly about customers on his Bitter Barista Blog and the annoyance of being a barista. In response, he said he thought highly of his boss and was only referring to the 5% of customers who make his job more difficult.
- Several Canucks fans lost their jobs after their involvement in the June 15, 2011 riots in Vancouver after the Stanley Cup Finals.
The employer is responsible for proving that there is sufficient cause for terminating the employee because they have alleged cause. As a result, if proof for cause is not provided, the employer will have to pay damages for wrongful dismissal. It is often difficult to prove cause for termination as the behaviour must be so severe that it repudiated the employment contract.
When determining just cause for a termination, courts with consider…
- the employee’s length of service with the company
- the employee’s past history of misconduct
- the effect of the misconduct on the employees’ ability to do their job
- if the employee represents the brand or image of the company
- if the employee violated an enforceable company policy
- Be careful about what you say and do outside of work. It may cost you your job!
- Make sure you can prove there was misconduct and that it is sufficient enough to warrant just cause (is the punishment of dismissal for cause proportional to the misconduct? Did you implement progressive discipline?)
- Consider the employee’s age, seniority, employment history, role and responsibilities. The court will consider these contextual factors when determining if the employer has cause to fire the employee
- Have a sufficient policy in the workplace that permits you to discipline or terminate an employee for behaviour outside of work and include all relevant clauses in the employment contract
- Give employees a copy of your company policies and get them to sign off that they have read and understand them
Are you having difficulty dealing with employee misconduct? Are your employment agreements and policies up to date? Contact us to today to consult an Employment Lawyer on the termination of an employee or for a review of your employment agreements and policies.