Partner, Whitten & Lublin Employment Lawyers, Toronto.
After several attendees of last month's white nationalist rally in Charlottesville, Va., were outed on social media and then quickly fired, Canadian employers are asking, "Can attending a white supremacist rally be grounds for dismissal?"
The answer is yes – but with several caveats.
Freedom of speech does not translate to freedom from workplace consequences. Canadians are given the right to express their personal views, political preferences or ideologies, whether privately or in public. Although their opinions and behaviour may be perfectly legal, that does not render them immune from workplace discipline or dismissal.
Outside of unionized employees, an employer is well within its legal rights to discharge employees for virtually any reason, or for absolutely no reason at all, as long as a proper severance payment is provided. This is the beauty of Canadian dismissal law; paying severance makes just about any dismissal decision justified.
Technically, there is no difference between firing an employee because he or she identifies with white supremacists and firing that same employee because of restructuring. Neither employee has any right to challenge the basis for termination. And if a severance package is provided, there also should be no difference in the amount required.
The more interesting question is whether firing an employee for attending a rally can be seen as a form of misconduct such that there is just cause for dismissal without any severance at all. This is where dismissal law gets tricky. Termination for any form of misconduct without pay is usually difficult for employers to justify as they first have to prove that the punishment fits the alleged crime. But if the correct conditions are met, it can and should be done.
If an employee is publicly outed on social media for his or her participation at a white supremacist rally, it could be cause for dismissal.
Employers have a legitimate interest in protecting their brand and reputation, especially online. As the mob mentality of social media is now more powerful than ever before, an employee publicly shamed online, even for privately held beliefs, can be indirectly causing damage to an employer's reputation and putting that employer's decisions in the spotlight. In the United States, several employers faced extreme backlash when their employees were outed for attending a rally. An employer who does not take action in these circumstances could face far more negative publicity than an employer that takes quick steps to distance itself from that employee.
A more likely case for dismissal without severance is where there is some form of link between an employee's behaviour and the workplace. Distributing hate propaganda to colleagues, posting flyers or pictures in the workplace or encouraging co-workers to agree with certain ideological beliefs, is a more-clear-cut case to deny severance.
Human-rights legislation across the country states that employers have a legal duty to provide workplaces free from harassment and discrimination, which extends to ensuring the actions of their employees do not create or even potentially create a poisoned workplace. While holding certain views or expressing them privately is not illegal, bringing them into the workplace for others to see and hear is a form of indirect discrimination that could lead to a successful human-rights complaint against both the offending employee and his or her employer.
If other employees refuse to work with an individual who is identified as supremacist, even if on his or her personal time, it could also lead to a court upholding a dismissal without severance. In a recent case, an employee was terminated for misconduct after he was charged for possession of child pornography. In upholding the dismissal, the court found that the charges themselves were so detrimental to the workplace and employee morale that the employer had no other option but to immediately fire him.
What conclusions can we draw?
Employees are clearly allowed to hold personal opinions and views, even racist ones, without fear that their thoughts or prejudices will follow them back to their desk. This by itself it not grounds to dismiss for cause, nor could it ever be. But once these views cause harm or potentially cause harm to an employer's business interests, no employee should expect that any workplace law would protect them.
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Daniel Lublin