The dismissal of a Hydro One engineer for his involvement in the vulgar disruption of a female reporter is the latest example of employers firing employees for their conduct outside of work, according to employment lawyers.
Hydro One engineer Shawn Simoes was among a group of men who hurled obscenities at Shauna Hunt, a CityNews reporter covering a Toronto FC soccer game on Sunday.
Video of Hunt confronting the men, one of whom yelled "F--k her right in the p---y," went viral. Two days later Hydro One announced the termination of Simoes.
Simoes is shown in the video calling his friend's use of FHRITP — a popular trend of heckling female journalists— hilarious before telling the reporter she is lucky they didn't have a vibrator.
"Hydro One is taking steps to terminate the employee for violating our Code of Conduct," Daffyd Roderick, the company's director of corporate affairs, said in a statement. "Respect for all people is engrained in the code and our values. We are committed to a work environment where discrimination or harassment of any type is met with zero tolerance."
There is an increasing trend towards off-duty conduct being used to justify dismissal if it is captured and shared through social media, said Carman Overholt, an employment lawyer and founder of Overholt Law Barristers & Solicitors.
'There is no privacy'
Employers have fired employees who were caught acting inappropriately outside work, even if they were unaware they were being filmed, recorded or photographed.
Here's the FHRITP confrontation from the TFC game last night. Please retweet http://t.co/Lrot7E9fUQ— @shaunacitynews
"Look what happened to Donald Sterling. His girlfriend was privately taping him and it made him a national embarrassment," said Howard Levitt, a senior partner at Levitt and Grosman LLP and an expert on employment law. "There is no privacy. This is the least privacy we've had in history."
Hunt told CBC's As It Happens that her intent was not to vilify her hecklers.
"They're just an example of hundreds and hundreds of men that have been doing this to reporters in Toronto for the past two years."
Line between on-duty, off-duty less clear
Hydro One is likely justified in their decision to fire Simoes, lawyers said.
Traditionally, a company's code of conduct would not cover off-duty actions, Overholt said.
"That said, there are certain kinds of extremely offensive and shocking off-duty conduct that may make the continuation of the employment relationship impossible."
Workers can be fired for behaviour outside work if it damages the reputation of their employer, he said.
After the riots that swept Vancouver in 2011 following the Canucks' defeat in Game 7 of the Stanley Cup Finals, a photo of a woman looting Sears was spotted online by her employer and she was subsequently let go.
"The line between on-duty and off-duty is not as clear as it once was due to social media," Overholt said. "Behaviour outside of work may very well justify a form of discipline, including dismissal."
Employees who are in a position in which they are publicly connected to their employer to the degree that their behaviour is deemed detrimental to the company brand can face dismissal for such behaviour.
"If you are an employee sitting in anonymity in a warehouse somewhere, it's less likely you would be publicly connected to that brand," Levitt said.
Unionized employees shouldn't consider themselves better protected, he said.
"Unions can say they don't want to be a part of a case," Levitt said. "They don't have to take cases they don't believe in."
Justified discipline in the workplace is considered on a case-by-case basis, lawyers say. The contextual approach considers other factors like language of the code of conduct, company policy, the employee's work history and terms of employment.
Offences don't have to be work-related
In Calgary, police have gone on the offensive and deemed the FHRITP trend a crime. "This activity constitutes grounds for a charge and arrest," read a statement.
There are numerous charges that could be laid from FHRITP disruptions, Toronto police said, including breach of the peace, sexual harassment and mischief.
Had the men in Sunday's video been charged, it also could be grounds for dismissal.
In the case of Kelly v. Linamar Corporation, a 2005 Ontario lawsuit, an IT employee was charged with possession of child pornography using his own computer and acting entirely on his own time. It was not related to work, but he was subsequently fired.
A judge sided with Linamar that the worker's termination was justified, because of concern over the impact on the workplace and the reputation of the employer in the community.
Levitt suggests employees, as a general rule, assume they can get fired for inappropriate conduct everywhere they go.