'Any just cause termination of an employee will be very exceptional'
In today’s “switched on” world, we’re never far from preying eyes, and one mistake, one slipup, can be recalled and relived over and over again.
The advent of social media means a person’s entire life cycle is online — every picture they’ve ever taken, every Tweet they’ve ever sent. While that’s not normally a negative issue, when it comes to employee-employer relations, it can cause some legal headaches.
It begs the question, when can an employee be fired for out-of-office conduct?
“Any just cause termination of an employee will be very exceptional,” says Mike MacLellan, partner at Ontario-based law firm CCP. “Even in the most clearcut situations, there has to be something really egregious — some willful misconduct that irreparably severs the employment relationship.
“When it comes to-off duty conduct, it’s even rarer that an employer can terminate.”
As MacLellan tells HRD, for an employee to be disciplined, much less terminated for something they did outside of their workplace or working hours, their actions would have to be connected, and detrimental, to the business.
And if you’re looking for a prime example, you only need to go back to 2015.
A Hydro One employee was fired after a video surfaced of a group of football fans heckling a TV reporter. While the employee in question didn’t yell any of the remarks, he was still identified and terminated from his job.
Speaking to The Star, Hydro One’s corporate affairs director said that “respect for all people is ingrained” into their organization’s code of conduct – adding that they’re “committed to a work environment where discrimination or harassment of any type is met with zero tolerance.”
However, despite the quick firing, the employee was later rehired by Hydro One – with a statement from the worker’s union saying the firing was “unjust”, according to Global News.
While this is very much an isolated incident, it just goes to show how difficult it is to uphold out-of-office terminations.
“In this incident, I believe the employee was initially terminated, however there was a resolution to it,” says MacLellan. “Essentially, if an employer wants to fire an employee for something they did outside of work, it would have to be something really egregious and intentional.”
So how should HR proceed if they’re in this predicament? More often than not, these cases tend to revolve around social media – risqué posts or tweets.
Last year, an Estée Lauder executive left his role after a social media post surfaced which allegedly contained am offensive slur. In a statement, company executives said the Instagram post doesn’t “reflect the values of the Estée Lauder Companies, have caused widespread offense, are damaging to our efforts to drive inclusivity”.
Hindsight can be a wonderful thing for employers and employee caught up in out of office debacles – but in reality, should HR leaders be taking a more pre-emptive approach to ensure the issues don’t happen in the first place?
“In my opinion, HR should not step in but should prevent it,” says James Blackwell, CEO of Ronald James. “Companies must ensure they have an effective social media policy in place, one that’s thorough and ensures staff use of the internet with caution and are mindful of its influence on not only their reputation, but also their employer’s.
“If the company does not have policies in place, then they should be reviewed straight away and set a periodical revision to accompany any advancements – they need to be enforced systematically with clear stated and effective disciplinary procedures.”
