Many of us have now read about or perhaps even watched the viral video where a Toronto reporter interviewing fans at the Toronto Football Club’s home opening at BMO Field confronts a group of people who either did, or were about to, shout profane and vulgar comments into her microphone.
Some see this as a harmless, if not crude, joke. But what are the consequences? The police department, Premier of Ontario and a growing majority are firmly taking the stance that this ‘joke’ is very much a case of verbal harassment and sexual harassment. Being caught on live television verbally and sexually harassing a reporter is unlikely to end well, and in this case, it certainly came with serious consequences for at least one of the individuals involved.
One of the individuals who spoke on camera was employed as an engineer at Hydro One. Hydro One released a statement following the incident announcing that this employee would be terminated from his employment for violating Hydro One’s Code of Conduct and that Hydro One is committed to a work environment with zero tolerance for discrimination or harassment.
The obvious legal issue here is that this incident did not take place within the work environment, but on a weekend at a sporting event. Can Hydro One, or any employer, terminate an employee for violating a Code of Conduct when the employee is on their own free time?
Hydro One has two main options in this situation:
- Hydro One could maintain its public stance and terminate the employee for cause, citing that his vulgar and offensive language on live television constituted harassment and therefore brought Hydro One into disrepute and breached the public utility’s Code of Conduct. A with cause termination generally results in zero compensation for the employee and no severance package; or
- Hydro One could terminate him without cause and provide a small severance package.
Hydro One’s decision to terminate with cause will depend on several factors, including an objective analysis of whether this employee’s behaviour on live television could actually or did actually harm Hydro One’s reputation or image. From reports, it appears that this employee was an engineer with Hydro One, but we do not know the extent to which he represents Hydro One to the public or consumers.
An employee who represents the brand of a company, such as an executive or major representative, would be held to a higher standard of public action and Hydro One would have a stronger case for justified with cause termination. If, for example, this employee was the president of a major corporation, there would be little doubt that the president’s actions would reflect directly onto the company and tarnish the company’s reputation by association, thereby justifying a with cause termination. This calls to mind the fairly recent and very public termination of Jian Ghomeshi, who was terminated by CBC after the employer saw evidence to suggest that he had assaulted and injured a woman. Many of the claims against Ghomeshi are related to incidents that occurred on his own time and out of the employment context, however, given that Ghomeshi was a popular and very public face of CBC radio, his alleged actions immediately brought CBC into the story and arguably harmed the CBC brand or image.
In contrast to a recognizable and public employee such as Ghomeshi, an employee that is new or very junior and has little impact on the brand of the employer may make it more difficult to justify a with cause termination. In this instance, it could make it more difficult to argue that the employee’s actions actually impacted Hydro One’s image at all.
Hydro One also has the option of terminating the employee without cause and offering compensation and severance. This would help protect Hydro One from a wrongful dismissal law suit from the employee who could likely claim that Hydro One did not have sufficient cause for termination. Hydro One may wish to avoid the publicity and expense of a wrongful dismissal lawsuit by offering a package to this employee. Whatever happens internally, Hydro One has publically declared that the actions of its employee’s outside of the work place are subject to scrutiny and potential discipline.
Regardless of whether Hydro One offers a package or terminates this employee with cause, the employee is still now without a job. In this media savvy and digital age, there is an ever increasing risk that an employee’s conduct outside of work will circle back to their employer. If the employer is negatively impacted by the employee’s actions, it can create significant problems for the employee, and in the most extreme scenario, result in termination as occurred in this case and in the case of Jian Ghomeshi.
It is prudent for both employees and employers that everyone is made aware of an employer’s code of conduct and understands the implications and expectations arising out of the employment relationship. Employees are wise to understand their role in a company and to take care, particularly when they are in positions of power or influence, not to act publically in a manner that may harm their employers’ image and attract disciplinary action.