Protests and Off-duty Conduct. Can you Lose your Job Over it?

Can participating in protests or yelling obscenities over a live news broadcast land you in hot water with your employer?

In some instances, it can!

With the ongoing protests of “freedom fighters” all over the country, I thought to myself…“how far is too far? Can an employee’s actions while off duty from work lead to getting fired?”.

You might remember back in 2015 when a Hydro One employee yelled obscenities while a female reporter was interviewing people at a Toronto FC soccer match. That stunt cost him his job after the internet took matters into its own hands and identified him. Hydro One claimed that the employee had violated its Code of Business Conduct.

His union grieved, and he was ultimately reinstated after an arbitrator decided that the dismissal was not justified in the circumstances.

What if the employee worked in a non-unionized workplace – would the employer have cause to terminate the employee?

The case law tells us that the employer would have to establish a clear nexus between the off-duty conduct and the workplace. In doing so, the employer has to show that the off-duty conduct:

• harmed the employer’s reputation;
• rendered the employee unable to perform his or her duties;
• led to the refusal of other employees to work with the dismissed employee; or,
• prevented the employer from being able to effectively manage its operations.

A few additional pieces of information might strengthen an employer’s case, most notably if the employee was wearing their work uniform or was easily identifiable as an employee the company. With that said, it’s still very difficult for employers to prove just cause in such cases. 

In a non-unionized context, the more likely outcome is that an employer dismisses an employee without cause. In that case, the employee would be entitled to their Employment Standards Act minimum entitlements and possibly common law notice.

Let’s bring this into the context of the “Freedom Convoy” protests taking place all over the country. We all know that attending and taking part in a protest isn’t illegal so long as it does not lead to violence. However, with reports of anti-Semitism, racism, and other acts and displays of hate, we have to stop and think of possible employment ramifications for those involved.

A hypothetical: Mike works for ABC123 Trucking co. His truck clearly displays the company logo, he’s wearing his company uniform and attends the rally in support of the convoy. The national news broadcast captures footage of Mike standing in front of his truck, the company logo clearly visible, and he’s holding a sign with an anti-Semitic message on it.

This scenario might put the employer on strong footing to terminate Mike. The company would have to demonstrate that the nexus between the off-duty conduct and the workplace exists. The employer here would likely have a good case to show that the employee’s off-duty conduct harmed its reputation – that it employs someone who openly makes anti-Semitic statements. The obscene statement might also cause colleagues to refuse to work with that individual or prevent the company from being able to effectively manage its operations.

All of these factors may very well justify termination for cause. While this example may appear to be an extreme scenario, it’s not unlike what we’ve seen in news reports.

At the end of the day, while it may be difficult for an employer to justify terminating an employee for cause because of off-duty conduct, it’s not impossible, and employees need to think about their actions outside of work hours.