May 15, 2015
by Israel Foulon LLP

The recent firing of Hydro One employee Shawn Simoes for making sexually harassing and offensive comments to a female TV reporter at a Toronto FC game should remind employees that what they say and do off-duty can affect their employment.  In Ontario, an employee’s off-duty conduct can attract discipline or dismissal for cause if it interferes and prejudices their employer’s business interests, operations or reputation with the public.

Due to the wide-reaching and viral nature of social media, evidence of an employee’s bad behaviour can be circulated at lightning speed and with little effort.  Mr. Simoes’ comments immediately began trending on social media once they were televised.  When he became known as an employee of Hydro One, the company’s name became inextricably tied to the story.  By the end of the next business day, the company fired him.

Some of you might be asking: “Can Hydro One do that?”  Assuming that Mr. Simoes is a non-unionized employee, the short answer is “yes”.  With few restrictions, an employer can dismiss a non-unionized employee for any reason not prohibited by law, provided that the employee receives proper notice of termination or pay in lieu of notice.  An employer would be particularly motivated to dismiss an employee like Mr. Simoes following a public outcry.

If an employer can demonstrate that it had just cause to dismiss the employee, then notice or pay in lieu thereof can be withheld and employment can be terminated summarily.  Just cause for summary termination is difficult to prove, particularly where off-duty conduct is at issue.  However, the burden is not impossible to meet.  If asked to determine whether off-duty conduct amounts to just cause for dismissal, a judge will consider the following factors:

• whether the employer had a code of conduct or workplace policies concerning the misconduct at issue;

• whether the employee was advised of the policies and/or received training with respect to them;

• whether the employer consistently enforced its policies;

• the employee’s position, and the degree of responsibility exercised by the employee;

• the nature of the employee’s misconduct and the number of occurrences;

• the employer’s notoriety and reputation in the community, and the potential or actual negative impact of the employee’s misconduct on that reputation; and

• whether the employee interacted with customers or the public, or was otherwise a “face of the company”.

In a widely-known case concerning this subject, a court upheld the for-cause dismissal of a long-service manager who had been charged with possession of child pornography.  He worked for a large employer in a small community and the charges were publicized in local media.  Importantly, the employer valued and promoted its reputation as a good corporate citizen, particularly through activities organized for young people in the city.  While the manager’s criminal activities were unrelated to his duties, the court ruled that his dismissal was lawful, stating that “a company is entitled to take reasonable steps to protect such a reputation”.

It remains to be seen whether Hydro One had just cause to terminate Mr. Simoes’ employment summarily.  The company has suggested that he was in violation of the Hydro One’s zero-tolerance policy for acts of discrimination and harassment, as well as Hydro One’s Code of Conduct.  Obviously, in terminating Mr. Simoes’ employment, Hydro One was attempting to inoculate itself from public criticism for continuing to employ someone like Mr. Simoes.  Whether our courts would uphold the dismissal if Mr. Simoes did not receive proper notice is an open question.  Having said that, employees ought to be warned that their off-duty conduct can have unexpected and unwanted consequences on their employment.