Quebec teacher case highlights consequences of off-duty activities
By Stuart Rudner
The recent controversy surrounding Jian Ghomeshi pre-empted this post, which examines the case of the Quebec teacher who faced controversy for her own off-duty conduct. Both cases, while quite different in their specifics, demonstrate how an employee’s conduct away from work can have a tremendous impact upon the employment relationship.
As an employment lawyer, I often see how individuals can suffer dire consequences as a result of their online activities, often either losing their job or losing out on the opportunity to get a job because of something that they said or did in the past. However, a recent incident involving a teacher at an elite college in Quebec demonstrates that even events that occurred five decades ago, before the Internet even existed, can come back to haunt you on the internet — and cost you your job.
Brébeuf College, a Jesuit institution in the province of Quebec, recently generated substantial controversy when it chose not to continue to employ a 73-year-old teacher after it learned that she had appeared nude in erotic films 50 years ago, at a time when she was a struggling actress. There were no issues with respect to her performance as a teacher or otherwise, but the college learned of the films in question when the racy scenes recently emerged online.
My understanding of media reports is that the teacher in question was not dismissed, but that her contract was not renewed. Either way, the college attracted substantial criticism for its decision. Many of the teacher's supporters have been adamant that she should not be penalized for something that happened 50 years ago.
Putting aside legal issues for a moment, the moral or policy issue of whether participating in erotic films 50 years ago should warrant losing one's teaching job now is a difficult one. Frankly, I can see both sides, particularly in a situation like this where the employer in question has, as part of its mandate, a responsibility to uphold certain values which would be entirely inconsistent with participating in such films. That said, the passage of time and the relatively innocuous conduct, compared to others, would suggest that this result is far too harsh.
It any event, the situation raises some interesting legal issues as well. To begin with, many members of the public asserted that this was not “cause" for dismissal. Being an employment lawyer, and one that has spent years writing about just cause for dismissal, I could not help but interpret this as an argument that, legally, there was no just cause for summary dismissal.
As I have written ad nauseam, the assessment of whether just cause for dismissal exists is a complicated one, which must involve not only consideration of the conduct in question, but all of the relevant circumstances. In this context, the decades that had passed since the conduct in question, and the apparent lack of any other concerns regarding the teacher’s performance or conduct, would certainly be relevant. However, the nature of the college, being a Jesuit institution, would also be relevant.
No account that I have read suggests that the college has taken the position that, at law, it had just cause to dismiss the teacher. As a result, when I hear people say that the college should not be allowed to terminate her employment, or choose not to renew her employment, I have responded by explaining that generally speaking, in Canada, employers have the right to dismiss an employee at any time, for almost any reason. As I have often said, half-jokingly, an employer would be within its rights to choose to dismiss an employee because of the colour of their shirt, so long as they provide the required amount of notice of dismissal or pay in lieu thereof. Outside of the unionized context, very few employees have job security.
That being said, the reason that I indicated that employees can be dismissed for “almost" any reason is that an exception to this rule exists where the reason relates to a ground that is prohibited by human rights legislation. In other words, an employee cannot be dismissed due to the fact that they are, for example, female, or Chinese, or “older." If a prohibited ground is even a small portion of the reason for the dismissal, then the employer will be in breach of the applicable human rights legislation.
I am not as familiar with the Quebec human rights legislation as I am with the legislation in Ontario and other provinces. However, in my view, based on the facts as I know them, the college's decision would not be a breach of human rights legislation. Having participated in an erotic film, and appearing nude therein, would not be grounds protected by human rights legislation.
If it can be shown that the employer has treated, or would have treated, a man in the same circumstances differently, then there would be discrimination on the basis of gender. However, in the absence of such facts, I do not see this as a human rights case. It is extremely unfortunate, and perhaps unfair to the 73-year-old teacher, that she lost her job due to the fact that she participated in erotic films. However, it is arguably no more unfair than situations where individuals lose their jobs for reasons entirely beyond their control.
What is clear is that a decision to terminate the employment relationship can have significant implications, both at law and in the public eye. Employers should always seek legal advice before making such a decision, in order to ensure that they do not expose themselves to potential liability. At the same time, employees that are dismissed should consult with a lawyer in order to ensure that their rights have not been breached.
Unfortunately, many individuals who lose their job seem to assume that they do not have any rights, or that even if they did, there is nothing they can do. Many individuals that seek advice from our firm have expressed the thought that even if our opinion is that they were treated fairly, simply knowing that will provide them with peace of mind that will allow them to move forward without wondering “what if" in the future.
Editor’s note: The school later reversed its decision and offered the teacher her job back, according to several media reports.
