InFocus Off Duty Conduct

Brace yourselves for backlash

Sep 17, 2015

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By John Tenpenny

Be prepared, HR: disciplining employees for off-duty conduct concerns may cause as much PR fallout – if not more – than the offending incident.

Social media spreads an ill-chosen comment as quickly as wildfire, with employers increasingly vulnerable to reputational damage stemming from the controversial opinions of their workers.

That’s especially so when those comments are broadcast for all to see via Twitter or Facebook. But if, or how, employers move to discipline that worker can create even more headaches for HR.

In a recent case, reported by HRM, The Toronto Symphony Orchestra’s decision to cancel performances by pianist Valentina Lisitsa over her Tweets in support of Russia’s war with Ukraine, was condemned by some civil rights activists and brought unwanted publicity to the organization.

The orchestra’s president and CEO, Jeff Melanson said Lisitsa was replaced due to “ongoing accusations of deeply offensive language.”

“As one of Canada's most important cultural institutions, our priority must remain on being a stage for the world's great works of music, and not for opinions that some believe to be deeply offensive,” read one orchestra release.

Whether an employee’s behaviour, such as inappropriate Tweets, constitute cause for termination, depends on the harm the comments cause the employer’s reputation or conduct.

Still experts agree that when there are public statements made or a public action is taken that clearly reflects poorly on the company or employer then employers do have the ability to exercise discipline.

The response to a report of off-duty conduct, particularly when it is discovered via social media, should be measured. Not all conduct merits termination. Review the specific facts, the impact on the organization, and the history/employment record of the employee. Consider how a termination would impact the rest of the workforce and how much actual damage has been done to the company’s reputation.

In essence, can the conduct provide more of a teaching moment to other employees, rather than form the basis for a termination?
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Aird & Berlis LLP is a leading Canadian law firm based in Toronto, serving clients across Canada and globally. The firm’s practice encompasses all principal areas of business law.

The Aird & Berlis LLP Labour & Employment Group provides practical and cost-effective advice to employers on a broad spectrum of workplace law matters. Our breadth of expertise ranges from labour, employment and human rights to occupational health and safety. We provide employment counsel in unionized and non‐unionized environments, to employers in both the private and public sectors. Our specialized team works with employers in various industries to navigate regulations, manage risks and ensure compliance.

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