Howard Levitt: Joining an insurrectionist mob is a clear firing offence. But so are these less egregious actions

Some Canadians have recently made the news for flouting their employers’ mission statements during COVID-19.

Can you be fired for what you do outside of work? Consider what happened in Washington last week during the storming of the Capitol by U.S. President Donald Trump’s supporters. In one infamous photo, there’s a man inside the Capitol building, dressed like a deranged fawn that just escaped from Narnia. He’s topless, clad in a pelt-horned Viking hat with his face painted red, white and blue. Beside him, stands a man sporting a Trump hat and an easily identifiable work badge around his neck.

Did he think that he was impervious to scrutiny? His employer did not. He was fired immediately for cause with the employer proclaiming, “while we support all employee’s right to peaceful, lawful exercise of free speech, any employee demonstrating dangerous conduct that endangers the health and safety of others will no longer have an employment opportunity with Navistar Direct Marketing.” That is one way to terminate someone for being an imbecile.

He was not the only one. A number of people who attacked the Capitol Building on Jan. 6 have been sacked or asked to leave their company. The associate general counsel at Goosehead Insurance was fired for his Instagram post depicting him outside the Capitol saying he wanted to get in. Others have subsequently been arrested including the horn-adorned fool in the photo. So was the rioter who posed for a photograph while absconding with U.S. House Speaker Nancy Pelosi’s lectern. It’s not known if they were employed, but they’d surely be fired for cause. Joining a violent, insurrectionist mob to lay siege to your nation’s Capitol is an obvious firing offence.

While this happened south of the border, they would have suffered the same fate here. In Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers International Union, Local 9-670, an arbitrator set out the following five factors in assessing whether off-duty conduct amounts to just cause. Any one of these might be sufficient: (1) the conduct hurts the company’s reputation or product; (2) the action makes the individual unable to do their job; (3) the action makes other employees not want to work with the culprit; (4) the individual has been charged with a crime and therefore the action is ruinous to the employer; and (5) the action makes it difficult for the employer to carry out its business.

While not as drastic as the events at the Capitol, some Canadians have recently made the news for flouting their employers’ mission statements during COVID-19.

Consider the lifestyle Instagram influencer working as a manager for the Public Health Agency of Canada’s Centre for Biosecurity, Office of Border and Travel Health. She took a recent trip to Jamaica paid for by Air Canada, contrary to her agency’s non-essential travel directive. She insisted that all necessary health precautions were taken and claimed that this was the first time her Instagram side-gig came into conflict with her career. That may (or may not) grant her some leniency as a first-time offender. However, she chose to take a trip that flagrantly disregarded the policies her office upholds and posted her (mis)adventures to her nearly 46,000 followers. The agency has not publicized whether its employee will face disciplinary action. Her conduct could well amount to just cause.

Then there is Ontario’s former Finance Minister Rod Phillips’ holiday in St. Barts. Premier Ford, who instructed Ontarians to stay home, was not pleased. Phillips was forced to resign. If he had been an executive, his actions, which included misleading Ontarians as to his whereabouts, would have amounted to just cause for his discharge.

More recently, the CEO of St. Joseph’s Health System in Hamilton was fired after vacationing in the Dominican Republic. Likewise, the CEO of London Health Sciences Centre was fired after taking five trips to the U.S. since the pandemic began. In both cases, it seems the health-care agencies approved their trips but St. Joseph’s Board did not indicate if it knew its CEO was going to the Caribbean. An employer cannot condone bad behaviour (i.e.: the trips abroad) and then allege cause for the very behaviour it condoned. I suspect that’s why both were fired without cause and provided generous severance packages. Yet, their conduct was antithetical to the health networks’ ethos to stay home to avoid overcrowding hospitals — some might say hypocritical. Since the CEOs were not practicing what the agencies’ preached, their employment relationships had to end.

These days virtually everyone is armed with a camera on their smartphone. Social media is ubiquitous and corporations are increasingly held accountable for their employees’ conduct. Exercise common sense when making decisions that could affect your employer’s reputation. Even though you may be off the clock, if your off-duty conduct flies in the face of your employer’s values and directives, you may find yourself unemployed. Perhaps even unemployable.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.