Train or fire? Bosses grapple with how to handle off-hours transgressions
by Cassandra Szklarski, The Canadian Press
Last week, several American firms fired employees involved in the Charlottesville, Va., white nationalist protests, raising the issue of how Canadian companies can address what their workers are doing off the clock
TORONTO—It didn’t take long for social media to reveal the identities of some of the participants of a racially charged protest in Charlottesville, Va., last weekend.
But it wasn’t just individuals who were outed by outraged critics—it was companies, brands and even suspected employers of individual protesters who were suddenly put on notice that the world was watching.
Reaction was swift, with a California hot dog restaurant announcing they had fired a protesting employee. Tiki Torch condemned the gathering after their kitschy fire-tipped lights were displayed prominently at the event. And the web hosting company GoDaddy said it would cancel service for a neo-Nazi website that disparaged a 32-year-old woman killed at the gathering.
The rally, organized by a group of white nationalists, neo-Nazis and other far-right extremists to protest the removal of a statue of Confederate Gen. Robert E. Lee, highlighted a dilemma bosses face when social media reveals a side of workers they’d rather not see, especially when it could sour office relationships and ruin a company’s reputation.
When does an off-hours transgression become grounds for dismissal?
Employment lawyer Jeff Goodman, a senior partner at the Toronto firm Hicks Morley, says Canadians have more job protections than those south of the border, where companies in most U.S. states can fire anyone without owing them anything, as long as the reason is not discriminatory.
Here, we’re entitled to give adequate notice and severance, said Goodman, and unionized workers can only be fired with just cause.
Toronto lawyer Patrizia Piccolo says the test is fairly clear when a unionized worker takes the case to arbitration: it includes determining whether the action harmed the company’s reputation or product, rendered the employee unable to perform their duties, made co-workers reluctant or unable to work with them, or breached the criminal code.
But that threshold is quite high.
She notes that a fired Hydro One employee—caught on camera defending a guy who crudely heckled a female TV reporter—was rehired after an arbitrator found he took sufficient steps to make amends.
Still, employers are much more sensitive to taking action when they’re uncomfortable with behaviour.
“We’re seeing more discipline, we’re seeing more training, we’re also seeing different types of termination,” says Piccolo, head of the employment group at Rubin Thomlinson.
“They may decide that they don’t want to terminate the person for just cause … there still may be a termination in a non-unionized environment where the person is packaged out. And they simply take the moral ground (saying), ‘We cannot have this person here.”’
It helps when the company’s expectations are clearly spelled out for everyone. Piccolo says those she’s worked with are being more explicit about what’s OK and what is not.
“There’s a much greater push to have policies in place to have that legal setup and the training that goes in to change that environment,” says Piccolo, whose firm gained national recognition for launching a workplace investigation into the CBC and conduct by former radio star Jian Ghomeshi.
It’s in a company’s best interest to champion, encourage and support diversity initiatives among its staff—before any offence occurs, adds management coach Melissa Nightingale, who counsels managers on how to handle unwanted behaviour.
“If you don’t know what your values are, now is the perfect time to sit down and figure them out,” says Nightingale, who specializes in gender issues in the tech world.
“Just the existence of that code of conduct sends a really clear message to the employees and the entire staff: This is how we want everybody to show up. It doesn’t mean we all have the same opinion, but it means we all have a common framework for what’s OK and what’s not OK.”
Sometimes an out-of-step employee needs sensitivity training. Other times, they simply need to go. Nightingale says it can be tricky to discern which is the case. It involves assessing their attitude, aptitude and skills.
“It took me a while to be able to know the difference, but attitude is hard,” she said. “It’s not that they don’t have the skills and it’s not that they can’t do the work, it’s that they don’t want to or they don’t want to make the progress,” she says.
“If you’re at the point where you’re really engaged with the Nazi underbelly of the Internet, it’s unlikely that you’re sort of going to find a lot of value in diversity and inclusion training.”
More often, Canadian bosses come to Goodman seeking ways to terminate without having to pay severance. But even when they’re forced to dole a payout, they’re increasingly willing to do that to protect their reputation.
“Society has changed enormously in that regard,” he says.
“Companies are much better about looking at the forest as opposed to the trees. They’re no longer saying, ‘He’s worth $2 million.’ They’re saying, ‘What does this mean to allow someone in our workplace in terms of the overall impact it has on morale and our reputation it the marketplace?”’