Terminating an employee is rarely an easy decision. Even after the employer makes the decision, complications can arise. While the phrase "You're Re-Hired!" isn't said very often, as Ontario Crown corporation Hydro One discovered recently (and probably much to its dismay), it can, and occasionally does, happen.
In May 2015, an individual spectator at a Toronto FC game attracted national media attention for the obscene remarks he made on the air to a female journalist working the game. Many in social media castigated him. He was also identified as a Hydro One employee earning a six-figure salary. It had been a year since the Rob Ford debacle but the issue of whether an employee could, and should, be terminated for off-duty conduct was once again in the news.
As we cautioned at the time, the options available to his employer, and the employee's ultimate fate, largely depended on whether he was a unionized employee. The employee was quickly and publicly dismissed from his employment with Hydro One with a massive wave of public support. As it turns out, he was a member of the Society of Energy Professionals, IFPTE Local 160 and thus was subject to the terms of a collective agreement. As a union member, his dismissal was subject to the collective agreement. All potential remedies were under an arbitrator's control, including reinstatement.
On November 2, 2015 it was reported, as a result of the grievance of his dismissal, either under the order of an arbitrator or as part of a settlement between the parties, the employee had been reinstated.
For employers operating in a non-unionized workplace, the remedy of reinstatement may be surprising. This is not something which is typically available to non-unionized employees. However, all employers should be aware the BC Human Rights Tribunal has jurisdiction to order reinstatement it finds that the reason an employee was terminated, at least in part, arose from a protected ground under the Human Rights Code. Re-instatement by the Tribunal is rare because: (1) the employee who was discriminated against does not want to return as an employee; or (2) the state of the workplace is such that the Tribunal declines to exercise its discretion to make the order. There have been no cases in recent history where the Tribunal has made this order although it remains available.
Employers can learn a few lessons from the Hydro One case:
- Consider implementing and enforcing a code of conduct which clearly outlines expectations of employees while at work and while off duty. Employers do have some limited rights to regulate off-duty conduct.
- Communicate the consequences of failing to meet code of conduct expectations including expressly warning about termination for cause.
- Beware of and prepare for the remedy of reinstatement. There may be appropriate occasions for an employer to take a principled position and refuse to tolerate certain behaviour. Termination with the prospect of re-instatement may be, in the employer's view, the best option available in a given situation.
- An employer can try to avoid litigation, a grievance (and the potential of re-instatement) by offering severance, and perhaps, additional consideration to persuade the employee to go away. An employer usually can choose to terminate an employee on a without cause basis for a non-discriminatory reason as long as it provides notice in accordance with the collective agreement, employment agreement or common law. Some collective agreements restrict this right, however, which may have been the case with Hydro One. In many circumstances, however, employers may find it repugnant to pay a wrongdoer.
Employers ought to take the long-view on these issues. Termination with notice, or pay in lieu, may not initially be the preferred option but in some circumstances, an employee's return to work may pose greater challenges in the long run.
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.
