Private life can be cause for firing, experts say...
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Oct 29, 2014  |  Vote 0    0

Private life can be cause for firing, experts say after Jian Ghomeshi dismissal

Firing employees for their private activities is rare, but does happen, legal experts say.

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Very few employees risk getting fired for activities that occur on their own time, employment experts say.

But it can and does happen.

It depends to what extent that employee’s personal activities adversely affect the workplace or the employer’s public image, legal experts said.

“Anyone in a position that impacts on an employer’s brand, who behaves in a way that’s inconsistent with the brand, can be dismissed without severance. Even in a unionized environment,” said Toronto lawyer Howard Levitt, of Levitt and Grossman LLP.

That’s especially true when that employee is a high-profile person and the nature of their off-hour pursuits — should they become public knowledge — would damage the employer’s brand.

The issue of employers’ rights has become a hot topic since the CBC fired high-profile radio show host Jian Ghomeshi on Sunday.

The public broadcaster said “information” came to its attention “recently that precludes us from continuing our relationship with Jian Ghomeshi.”

Ghomeshi stated on his Facebook page that he was fired because of the risk “of my private sex life being made public as a result of a campaign of false allegations pursued by a jilted ex girlfriend and a freelance writer.”

He said it is not unusual for him to engage in “adventurous forms of sex that included role-play, dominance and submission.” However, he said it has always been consensual.

A Toronto Star story on Monday said three women allege Ghomeshi was physically violent toward them without their consent, while a fourth woman, a CBC staffer, said he told her at work, “I want to hate f--- you.”

None of the women have pressed charges.

Ghomeshi is also suing the CBC for $55 million on the grounds of breach of confidence and defamation.

In reality, any employee can be fired for any reason. Under common law, all the employer is required to provide is reasonable notice and/or severance pay.

“Good people get let go all the time. An employer is free to hire and fire at their discretion,” said David Whitten of Whitten Lublin. “Nobody has a job for life.”

Many employers have codes of conduct that employees are required to sign that specifies they can be fired for conduct outside the workplace that brings the company into disrepute, Whitten noted.

In a unionized environment, such as the CBC, employees can usually only be fired for “just cause,” in other words failure to perform their duties, expert said.

But even in a unionized workplace, an employee can get fired if they do something on their own time that brings the employer’s brand into public disrepute, legal experts say.

“Where people have engaged in really egregious behaviour, arbitrators will uphold the firing,” said Tim Gleason, a partner at the Toronto law firm Dewart Gleason. “It doesn’t have to involve criminal charges. But it can’t just be something the employer doesn’t like.”

Even average people can run into trouble, Levitt noted. He cited the case of Kelly vs. Linamar Corp. An employee of no public prominence downloaded child porn in the privacy of his own home and got caught. The charges were publicly reported. Linamar fired him on the grounds his activities hurt their public image. The courts upheld the dismissal.

In general, what goes on in your private life is unlikely to cause a problem, provided it remains private.

“Most people need not be concerned about what they do on their private time in their bedroom,” said Nancy Shapiro, a partner in the Toronto law firm Koskie Minsky

In the Internet age, where many private activities can become public, that means being careful about what you post online, and who might be recording your activities on their cellphone camera, Levitt cautioned.

The onus is on the employer to prove the employee’s personal activities harmed the business, said Howard Goldblatt, a partner in the Toronto law firm Sack Goldblatt Mitchell.

“I had a case where there was a domestic abuse issue to which the individual pleaded guilty. It had no impact on their employment. The arbitrator ordered them reinstated,” Goldblatt said.

Such cases are often not straightforward, Goldblatt said. “People have a right to be different. The question is to what extent the employer has an interest in them not being different.”

Toronto Star

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