My prediction is that the Donald Sterling scandal, will not only
see him removed as owner of LA Clippers NBA franchise, but will
cause a sea change in the conduct of public figures everywhere.
It will presage and parallel the impact the 1991 Clarence
Thomas-Anita Hill imbroglio during Justice Thomas' U.S. Supreme
Court nomination had on sexual harassment both in the United States
and Canada. Sexual harassment charges before then were relatively
I recall one (male) human resource executive, responding to the
news boasting: "At my company, we don't fight sexual
harassment, we grade it." That reaction was not atypical.
But, by putting the issue of sexual harassment on the front
pages and making it part of public discourse, Canadians became
sensitized, the number of cases multiplied and lawyers, me
included, began a torrent of sexual harassment client seminars.
Standard corporate policies quickly followed.
Sterling's private conversations have resulted in his
eviction from the National Basketball Association.
Does this mean Canadian employees will be vulnerable to
dismissal as result of intemperate "private" chats
outside of the workplace? Of course, employees can be fired for any
or no reason at all, but their recourse is an action for damages
for wrongful dismissal.
The material question is whether such behaviour is legal cause
for dismissal without compensation. If the conduct deleteriously
affects your employer, it can indeed be cause for dismissal. If a
chief executive, for example, does something in his private life
that brings the company into disrepute, that would be cause for
discharge just as it would be if the head of HR in a multi-racial
company was caught making racist remarks to a friend that became
Citing the leading, oft quoted, English Court of Appeal decision
of Pearce v Foster:
If a person conducts himself in a way inconsistent with the
faithful discharge of his duty, it is misconduct which justifies
immediate dismissal. That misconduct need not be misconduct in the
carrying on of the service or the business. It is sufficient if it
is conduct which is prejudicial or likely to be prejudicial to the
interests or the reputation of the employer and the employer will
be justified, not only if he discovers it at the time, but also if
he discovers it afterwards, in dismissing that employee.
It makes little difference that Sterling believed he was
speaking privately but was surreptitiously taped. In Canada, it is
entirely legal to tape your own conversations. Canadians can go
around all day, if they wish, with a tape recorder and play that
recording later. There is no issue of admissibility either in court
or in its use by your employer if it was sent a copy of it.
To date, most of the cases in this area have derived from social
media. Many courts and arbitration boards have found cause for the
discharge of employees who malign their employer or its customers
on what they believed to be private chats or postings on Facebook
With so many of us having pocket recording devices on our
iPhones, Androids and BlackBerrys, Canadians will become much more
circumspect. All enunciated private thoughts could become fodder
for your HR department's subsequent predations. Nothing you say
to anyone else can any longer be assumed to be "private"
and private thoughts, which become public, may get you called on
the carpet and dismissed.
One thing is certain. Canadians' candour, wherever they work
and play, is going to become significantly reduced.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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