Twitter has been ablaze over the past 48-hours after CityNews
reporter Shauna Hunt confronted a group of imbeciles at
Sunday's 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 Mr. 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:
the conduct of the grievor harms the Company's reputation
the grievor's behaviour renders the employee unable
to perform his duties satisfactorily
the grievor's behaviour leads to refusal, reluctance or
inability of the other employees to work with him
the grievor has been guilty of a serious breach of the Criminal
Code and thus rendering his conduct injurious to the general
reputation of the Company and its employees
places difficulty in the way of the Company properly carrying
out its function of efficiently managing its Works and efficiently
directing its working forces.
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), 2009 CarswellNB 630).
Broadly speaking the cases suggest that:
Reputational damage is a serious concern and public knowledge
of a grievor's misconduct can affect an employer's
legitimate business interests, favouring dismissal for just
If it can be construed that the nature of the Grievor's
offence objectively and reasonable renders the Employer to lose
confidence and trust in the Grievor, it supports just cause;
If the Grievor's co-workers are aware of and uncomfortable
with the Grievors transgression, his reinstatement may interfere
with their ability to perform required work, meeting the fourth
criteria for just cause.
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, 141 LAC (4th) 189)], 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 Mr. Simoe and they can argue that they cannot be
expected to tolerate the behavior exhibited by Mr. 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
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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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