Discovering an employee harbours white supremacist views would shock most employers – but is it a sacking offence?
At least four US workers have lost their jobs after they were photographed marching in a violent neo-Nazi rally in Charlottesville, Virginia at the weekend. The men and their employers were named and shamed by amateur sleuths on social media, leading to their dismissals.
The employers of all four men issued statements announcing the men no longer worked there, and denouncing their views.
At least two Canadians have confirmed they took part
- both Quebec men.
While each province has its own termination laws, in Ontario, an employer can terminate any non-unionized employee without cause, by giving them notice.
Under some circumstances, a worker’s offensive off-duty conduct could constitute just cause for their dismissal.
However, that will depend on the nature of their actions, their role within the company, and whether the two can be connected, says Brandin O’Connor of Shields O'Donnell MacKillop LLP.
“Does the misconduct impact your ability to do your job, or the employer’s reputation, or your ability to work with your co-workers? If you’re employed in a diverse workplace, and here you are making a splash on social media holding very offensive views, can you really, in a collaborative workplace, work with your colleagues?”
First, an employer should consider the facts in the case, O’Connor says.
A one-off discriminatory comment may be grounds for discipline, sensitivity training or even a human rights complaint, rather than a just cause dismissal, though it depends “how severe it is, and the circumstances in which it’s uttered,” he says.
“If you have a senior employee who can be viewed as a representative of the company, or if their social media has some link to their employment, or they’re wearing a company golf shirt, or anything like that, it’s a much stronger case for the employer to say ‘wait a minute, this impugns our reputation in the community’.”
But what if, for example, a worker were accused of taking part in a torch-wielding mob giving Nazi salutes and shouting racist statements?
O’Connor says an employer must first take care to properly identify their employee – given some alleged participants of the Charlottesville rally were misidentified, causing reputational damage to unwitting lookalikes – and determine whether their worker really was taking part in the rally, or if they might have been a bystander or counter-protester.
“An employer would have to be careful in alleging just cause to make sure they have the right person, that they were really doing something wrong.
“The biggest question then becomes: how does this impact your business, the employee’s ability to do their job, to represent the company?”
A general labourer’s involvement, for example, may not amount to misconduct in the same way as it would for a senior company representative, public servant, or someone who works with youths or vulnerable people.
However, O’Connor adds, if there was violence or a crime committed, “that would change the scenario significantly”.
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