There’s a story in the Toronto Star today about a man from London, Ontario who was fired for making
disgusting comments on a Facebook memorial page for a young woman who commit suicide to escape bullying. Basically, he said that he was happy she killed herself. Someone who saw the comments reported them to his employer.
His employer was Grafton-Fraser owned retail store called Mr. Big and Tall Menswear. The company’s HR person said this: “Our company ethics are based on tolerance, respect and fair and honourable treatment of all individuals, internally, with our customers and the population as a whole”
Here’s a question for employment law students: Can a retail sales employee be fired for posting Facebook comments that have nothing to do with their employment conditions, co-workers, or bosses, using their own computer, during non-working hours?
What do you think?
Start with the basic premise that in most of Canada, an employer doesn’t need any reason to fire a nonunion employee.
Unionized employers need ‘just cause’–a good reason–to fire someone because unions bargain that requirement into collective agreements, and in Federal sector, the Canada Labour Code requires employers to have just cause to dismiss some employees (Section 240). But the vast majority of nonunion workers in Canada can be fired at any time by the employers. The only question is whether the employer needs to provide the employee with ‘notice’ of the termination.
So what we are really asking is whether the employer must provide an employee notice once it has decided to fire the person for the comments they made on the social media.
A second basic premise is that what an employee does outside of the workplace is not the employer’s concern and would not usually give rise to grounds for dismissal without notice (known as ‘summary dismissal for cause’).
When an Employee’s Off-Duty Conduct Becomes the Employer’s Concern
However, there is an important exception to that last premise.
If the employee’s off-duty conduct has, or could have, a serious adverse effect on the employer’s business interests, including it’s reputation, OR the conduct is incompatible with the employee’s work duties, then an employee’s off-duty antics do become the employer’s concern.
Consider some applications of this rule:
Kelly v. Linamer Corp. (2005, Ont S.C.): Very good managerial employee charged with possession of child pornography on his home computer. Summary Dismissal warranted, because reputation of high profile employer in the community, including as supporter of children’s causes, damaged by employee.
Beckman v. Hyundai (1990, N.S.S.C.): No cause for summary dismissal when sales manager dismissed for being charged with drug trafficking outside of work, because no evidence employer’s interest damaged or incompatible with performance of duties.
CIBC v. Boisvert (1986, Fed.C.A.), bank teller’s relationship outside of work with a known bank robber cause for summary dismissal.
Hyland v. Royal Alex Hospital (2000, Albta QB): Employer had cause for summary dismissal of accountant who schemed to purchase a car while avoiding GST payment. Since he was accountant and responsible for finances, conduct was incompatible with his work duties.
Questions for Discussion
With this background in mind, what’s the answer to the question? Does Mr. Big and Tall Menswear need to give the employee notice of termination in this case?
Was the comment made on Facebook incompatible with his duties as a retail sales dude, or do they seriously harm the employer’s reputation? [Note that it the employer’s decision to dismiss the employee that appears to have drawn attention to the events, as the termination has now become a news story. Does that matter, in your opinion?]