Written by David Doorey, York University
Here’s a fun post to open another term of Employment Law. Trump crazies stormed the Capital this week. Most of them didn’t wear masks so they will soon have COVID. And many of them won’t have health insurance because they won’t have jobs. As this story explains, employers are looking at the photos — the geniuses posed for the cameras — and are starting to terminate their employees.
In the US, where most jobs are “at will”, the legal issues are pretty straightforward. Employees have no protection from termination for off-duty conduct. Employers can dismiss employees for any or no reason at all with no notice.
I want to talk about Canadian law. Let’s assume that a bunch of yahoos from Canada storm into the House of Commons in Ottawa, smashing stuff, injuring police, and causing the politicians to stop working and to be evacuated for fear of their safety. Because its 2020, these idiots take selfies as they riot and post them on social media. Their employer sees the photos and fires them. Can the employers do that?
In the law of work, this is known as termination for “off-duty conduct“. As always, we need to distinguish between unionized and non-union workplaces. Unionized employees have MUCH greater job security. Their employer must establish that the off-duty conduct amounted to “just cause” for termination and that is a high standard. The employer would need to show that the behaviour harmed the employer’s economic interests and the employee’s past behaviour and other potential mitigating factors do not warrant giving the employee another chance. If the employer fails to meet this standard, an arbitrator would likely reinstate the employee to their old job. If you think that your employer should need a reason to terminate you, join a union.
I want to focus on non-union employees. Let’s recall the Golden Rule of the common law of the employment contract:
An employer can terminate a nonunion employee at any time, for any or no reason at all, by providing the employee with notice of termination in the amount required by the contract. That amount is either dictated expressly in the contract or the courts “imply” an obligation to provide “reasonable notice” of termination. Courts decide how much notice is “reasonable” by applying some criteria known as “the Bardal Factors”, the most important of which is length of service. All of this is explained in Chapter 10 of The Law of Work (Termination by an Employer with Reasonable Notice).
This means that any non-union employee who engages in off-duty conduct that the employer considers objectionable can be terminated with notice. [This includes for social media posts that the employer doesn’t like kiddos!]
The more interesting question is whether the marauding employees can be terminated for cause, without notice. This is known as “summary dismissal for cause” [see Chapter 12 of The Law of Work]. The test here is similar to that applied by labour arbitrators dealing with unionized employees. In order to terminate an employee, without notice, the employer needs to demonstrate on a ‘balance of probabilities’ that the employee engaged in conduct that could threaten the employer’s economic or reputational interests.
Pay attention to what is happening here. We are dealing with contract law, so the question is what rule of contract permits the employer to terminate an employee for off-duty conduct? What is the legal wrong? What contract term has the employee breached?
The answer lies in understanding implied contract terms. In Chapter 9 of The Law of Work, we discuss the implied duty of fidelity in common law employment contracts. In particular, there is in implied term in employment contracts that employees will serve their employer faithfully and cooperate in advancing the employer’s economic interests (see p. 138-139). Off-duty conduct that could undermine the employer’s economic interests violates that term.
Therefore, if the employee engages in off-duty conduct that undermines the employee’s ability to perform their duties or that threatens the employer’s reputation, for example, the employer may be justified in terminating the employee for cause, without notice.
The case I use in the textbook to demonstrate this area of the law is called Kelly v. Linamar Corporation. That case involved an employee terminated after he was arrested after child pornography was found on his home computer. As you read the decision, pay attention to the legal test that is applied. A good summary of the law can be found in paragraph 26. The employer wins that case, but why? What if Kelly was a forklift driver in some warehouse in an industrial park in Toronto? Do you think the outcome might have been different? Why?
After you have considered these questions, return to the problem we opened with. What facts would you want to know before you decide if a Canadian employer would have grounds for termination without notice of an employee caught on camera inside the Parliament buildings during a mob raid?
David Doorey, “Would Rioting at Canada’s Parliament Building Be Grounds for Dismissal Without Notice?” Canadian Law of Work Forum (January 8 2021) https://lawofwork.ca/?p=13203