An employee who gave the finger to President Trump while she was on a bike ride has been fired. Juli Briskman worked for a marketing company in Virginia, and the salute famously captured in photo occurred during her off hours. However in the country with the least employee protections in the economically advanced world, such expressive off-duty conduct is enough to ground a termination.
Would the result be any different in Canada?
Does the Common Law of the Employment Contract Protect the Employee?
Assume that the employee works for a private sector company so that the Charter’s protection of freedom of 
expression does not apply (whether the Charter would protect a right of a public sector employee to give the finger to a politician is a separate interesting question). Assume also that the worker is non-union like the American employee. Unionized workers have greater protections from dismissal because employers must demonstrate “just cause” for termination (see Part IV of the Law of Work exploring the Collective Bargaining Regime). A unionized employer would almost certainly not have just cause to terminate the employee in question, perhaps unless the employee had a long history of disciplinary misconduct and the behaviour was a clear breach of a collective agreement rule.
Let’s focus our gaze first then on the Common Law Regime of the employment contract (Part II in The Law of Work text). We are dealing with the common law’s treatment of termination for off-duty employee conduct. As explored in Chapter 14 (Summary Dismissal for Cause), off-duty employee conduct can be grounds for termination without notice, but only if that conduct poses a serious risk to the employer’s economic interests or compromises that employee’s ability to perform their job. The facts provided in the news story indicate that prior to the dismissal becoming a story in its own right, the photo was of an unnamed women who just happened to riding her bike as the motorcade went by. There was no indication of who the woman was or where she worked. The woman voluntarily disclosed to her employer that it was her in the photo and she was then terminated.
On those facts, it is difficult to see how the employer’s economic interests were threatened by the off-duty conduct or how it would compromise the employee’s ability to perform her job as a social media manager. What do you think? My guess: a Canadian court would not find cause for summary dismissal on these facts. Do you think that it would make a difference if the employer had a policy forbidding inappropriate conduct?
Of course, the fact that the employer might not have grounds for summary dismissal without notice does not mean that the employer couldn’t fire the employee in Canada. With some exceptions (see below), an employer can always terminate an employee for any or no reason at all by providing notice of termination in the amount required by the contract. Therefore, absent a clause in the contract protecting freedom of expression in the form of a one-finger salute of a politician, a Canadian employer would be within its contractual rights to terminate the employee with notice.
Does Human Rights Law Protect the Right to Give the Finger to a Politician?
One of the main exceptions to the general rule that a Canadian employer can fire an employee for any or no reason at all with notice is that a statute may prohibit the termination. The Regulatory Regime creates a variety of exceptions to the common law right to dismiss without cause. For example, human rights legislation in Canada prohibits employers from terminating employees for reasons related to discrimination based on certain designated grounds. Those prohibited grounds are listed in the below chart taken from Chapter 27 of The Law of Work.
Note that 9 jurisdictions prohibit discrimination on the basis of political opinion or belief. In those jurisdictions, there is certainly an argument that being fired for expressing a strong opinion against a particular politician or political party is unlawful. If the employee won a human rights complaint, she could get her job back since reinstatement is within the range of remedies available to human rights tribunals.
What do you think? Do you think that a human rights tribunal would find that giving the finger to a politician falls within the scope of the prohibited ground of political belief or opinion? Does the manner in which the opinion is expressed matter? Should it?