Just cause is not a lost cause

By Stuart Rudner

Like Shawn Simoes, Ken Pagan has now become infamous as a result of his stupid behaviour at a sporting event in Toronto. For those who don’t immediately recognize the name, Pagan is the fan who threw a can of beer at a visiting player as he ran to catch a fly ball at a Toronto Blue Jays game.

Also like Simoes, Pagan has embarrassed not only himself, but his employer. In Simoe’s case, the employer in question was Hydro One. It fired him almost immediately after the incident in which he was caught on tape yelling offensive, misogynistic comments at an on-air reporter (though the grievance process ultimately led to his reinstatement).

Pagan is employed by Sportsmedia. He is a sports reporter, and apparently quite well-liked and well-respected. But his dumb decision to throw a beer can at a visiting player in the middle of a playoff game endangered the player in question and embarrassed the city of Toronto. He has generated a tremendous amount of negative attention to himself, and also to his employer. So the question arises again: What is an employer to do when one of its employees does something off-duty that embarrasses the organization? Can it fire him?

This issue comes up all the time in relation to online conduct, particularly on social media. There is no shortage of examples of individuals making inappropriate, offensive comments on social media which impact the reputation of their employer. As I wrote in a previous blog post:

So can you be fired for something you do on your own time, off-duty and away from work? The simple answer is yes, you can, in the right circumstances.

Even if you are not explicitly or implicitly representing your employer? Yes. In the right circumstances.

Even if your behaviour has nothing to do with work and does not involve your colleagues or supervisors? Again, yes, in the right circumstances.

Is this a new law? No. The law has always provided for discipline or dismissal as a result of off-duty conduct, in limited circumstances. However, the issue rarely came up before the advent of social media, cell phone cameras and YouTube.

Unless Pagan is unionized, then Sportsmedia is free to terminate his employment at any time. In Canada, almost all non-unionized employees can be dismissed at any time, for any reason, or for no reason at all. However, employees have to be provided with notice of dismissal, or severance pay, unless there is just cause for the termination.

As I wrote previously,

In Canada, there are only two types of dismissal: With cause or without. The vast majority of dismissals are without cause (including downsizings, reorganizations and the like), in which case the employee is entitled to notice of dismissal or pay in lieu thereof. The amount of notice, or pay in lieu, is based upon a number of factors which I have discussed in previous blogs, including here and here.

However, if someone is dismissed with cause, she is not entitled to anything; no notice, no severance, no pay in lieu. It is obviously a harsh result, which is why some Judges have referred to it as the “capital punishment of employment law”.

So will Pagan “get fired”? That remains to be seen. Hydro One made the decision, in the case of Simoes, to take the step of immediately dismissing him. While it probably realized it would ultimately have to take him back, the company also realized that from a public relations perspective, dismissing him and publicly announcing it had done so was an extremely smart move. It gave Hydro One the chance to clearly proclaim it does not tolerate behaviour like that of Simoes. It allowed the company to look good, rather than being tarnished by the offensive conduct of a (former) employee.

Pagan’s conduct, while idiotic, was not as offensive. Nevertheless, Sportsmedia may decide that as an organization focused on sports coverage, it does not want to be associated with someone who has such poor judgment that he would do something so unacceptable at a baseball game. The company might package him out, and minimize its risk of a successful wrongful dismissal claim, or it may dismiss him for cause, making a stronger statement but also exposing itself to greater liability, since it is far from clear that Pagan’s conduct would constitute just cause for dismissal. As I wrote in a previous blog post,

I wrote a book on the issue of when employees can be dismissed for cause. It is updated twice a year, which means that I have read thousands of cases on the subject. It is a complicated issue, and the only absolute rule is that every case must be considered based upon its own particular circumstances, which includes all relevant factors. In other words, an employer cannot consider the alleged misconduct in isolation.

The threshold for establishing just cause for dismissal is quite high, as the punishment must be a proportionate response. In assessing whether just cause is warranted, the alleged misconduct cannot be considered in isolation; all relevant circumstances must be taken into account. This is something that comes as a surprise to many: the misconduct is not to be considered in isolation. Additional factors to be considered include:

• The individual’s length of employment
• The individual’s disciplinary record
• The nature of the individual’s position
• The degree of trust required
• The individual’s response when confronted with allegations of misconduct
• Any mitigating factors
• Anything else that relates to the employee’s honesty or trustworthiness or the viability of continuing the employment relationship.

Proportionality is a fundamental principle in this context, and in many cases, courts will conclude that discipline was warranted but that summary dismissal was too harsh. That said, there are frequent examples of dismissals that held up under judicial or arbitral scrutiny. As I often say, “Just cause is not a lost cause”; summary dismissal will be upheld in appropriate circumstances.