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    Termination for Cause: Actions Outside the Workplace

    Termination for Cause - Protesting

    Outside the workplace, behavior leading to termination for cause is once again in the news here in Ontario.  A London, Ontario neonatal intensive care nurse who organized an anti-mask protest in her hometown and participated in an anti-lockdown protest in Washington D.C. on January 6, 2021 is the latest of such notorious of cases. Before discussing the specifics of her situation, it is good to look back at how something an employee does in their off hours can have a direct impact on their employment.

    Termination for Cause

    Termination for cause is known as the ‘capital punishment’ of employment law. Unlike  “without cause” termination of employment, the dismissed employee receives no termination pay unless cause in their particular case falls outside the scope of the Employment Standards Act’s definition of cause, which is more limited than the expansive common law definition. Cause can be difficult to establish, especially where the act or acts the employer is relying on took place outside of the workplace.

    For an employer looking to rely on actions outside of the workplace to establish termination for cause, those actions have to somehow reflect on the employer or be incompatible with the employee’s job on some level. Where the employee is a so called ‘face of the company’ or publically associated with their employer, the analysis is simpler.  In such cases, it is easier to appreciate the link between outside the workplace behavior and damage to the reputation of the company. If the general public views a person as being representative of their employer, then poor choices of actions in their off hours by that person has the potential to reflect negatively on their employer.

    The analysis becomes a bit more difficult for rank-and-file employees. What this kind of employee would have to have done outside the workplace would have to rise to such a level to be completely inconsistent with their job. As such, context is key to the analysis.

    In the News

    This brings us back to the neonatal nurse. She had been employed with the London Health Sciences Centre (“LHSC”), which is the hospital network in London, Ontario. During the pandemic, the LHSC and the local health unit have had and continue to have very specific messaging about public health measures, including the use of masks and lockdowns. It would appear that this nurse did not agree with that messaging. While what you express privately is unlikely to get you in trouble, once you express your views in a very public forum, where those views are very much incompatible with your employer’s mandate and the employer learns of your activities, the termination for cause analysis may be engaged. In this case, the nurse was one of the organizers of a local anti-mask (among other things) rally in November 2020. She was charged under the Reopening Ontario Act and the protest received some attention in the local media. Apparently her employer learned of this, promptly suspended her and began an internal investigation. Prior to the completion of this investigation, the nurse attended the Washington rally, where it was reported that she was a speaker. A couple of weeks later, LHSC terminated the nurse for cause. Whether she will attempt to take any action to fight the termination remains to be seen.

    This nurse was a rank and file employee of the hospital. However, her involvement in these protests brought her a degree of local notoriety. The public took notice and, as a result, so too did her employer. This would appear to be a situation where the employer determined that the employee’s actions outside of the workplace indicated the potential for both impacts on workplace safety and public trust in the services provided by the employer. The context here would have been key in the analysis undertaken by the employer and it would also be key should this ever be litigated.

    Final Thoughts

    The take-away for employees is clear: if you are going to make public statements outside of the workplace that demonstrate clear opposition to the mandate of your employer, these could result in workplace discipline up to and including termination for cause.  Whether such measures by an employer are justified will depend on the context of each specific case. If you are an employer or employee and have questions regarding termination for cause, contact the Employment Law Team at Merovitz Potechin LLP.

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    Posted By: Merovitz Potechin

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