Facebook taunts reprehensible, but are they just cause for dismissal?

By Stuart Rudner

We have spent the last few days reading about the horrific tragedy that resulted in Amanda Todd, a 15-year-old teen in British Columbia, taking her own life after years of bullying.

Now, as the community rallies around her and anti-bullying initiatives take on new life, one man posted the following on a Facebook memorial wall for Amanda: "Thank God this b**** is dead."

The poster was readily identifiable as Justin Hutchings of London, Ont. His employer, Mr. Big & Tall Menswear, was also readily identifiable. Hutchings was promptly dismissed, though reports to date are unclear as to whether he was fired for cause or not. Here’s the question: Did the company have just cause to dismiss him over the Facebook posting?

Let’s remember a few basic principles:

•Most employees in Canada do not have job protection. They can be let go at any time, for any reason (other than protected grounds under human rights legislation), as long as they are provided with the required notice of dismissal or pay in lieu.

•Generally speaking, what employees do on their own time is their own business.

So, it would be open to an employer in this type of situation to dismiss the employee on a without cause basis, as long as they provide notice or pay in lieu. However, if the employer wants to take the position it had just cause, we need to continue the analysis:

Off-duty conduct will be considered misconduct which can result in discipline or dismissal if:

•the conduct of the employee harms the company’s reputation

•the employee’s behaviour renders the employee unable to perform his duties satisfactorily

•the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

•the employee’s conduct makes it difficult for the company to properly carry out its function of efficiently managing its works and efficiently directing its workforce.

In other words, the conduct must have an impact on the employer or the employment relationship to constitute misconduct.

If an employee has engaged in misconduct, the next question is what form of discipline is appropriate — summary dismissal, or something less?

In assessing whether summary dismissal is appropriate, the law is clear that the misconduct is not to be considered in isolation. Rather, a contextual approach is to be used which takes into account all relevant circumstances.

This can include length of service, disciplinary record, nature of position (and degree of trust required), any mitigating circumstances and the employee's response when confronted with the allegation. In marginal cases, the employee’s honesty (or lack thereof) in the investigation process can be the difference between a finding the employment relationship has been irreparably harmed and just cause for dismissal therefore existed, and a conclusion that summary dismissal would be too harsh. Throughout the analysis, the principle of proportionality is to be kept in mind.

When explaining the decision to dismiss Hutchings, Kamy Scarlett, senior vice-president store operations and corporate HR at the parent company of Mr. Big & Tall Menswear, stated: “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.” Scarlett also said: “We have zero tolerance for the mistreatment of others no matter what form it takes.”

I often urge employers to use “zero tolerance” policies cautiously. Just because your policy says something will be just cause for dismissal does not mean a court will agree. The contextual approach is always to be applied. Furthermore, zero tolerance policies can lead to unintended results. Most employers will say they have zero tolerance for employee theft. However, when confronted with the assistant that takes a pencil home one night so his daughter can do her homework, the employer will be reluctant to dismiss the employee for what is clearly an act of theft.

Getting back to Hutchings, it is unclear at this time whether he was dismissed with or without cause. We know what he did. However, there is much we don’t know about the relevant background and circumstances. As such, it would be difficult, at this time, to comment on whether or not the employer had just cause to dismiss him. That said, his conduct was morally reprehensible, and it is hard to fault the company for terminating the employment relationship, with or without just cause.

Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.