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Employment & Labour

Is an employee's "spliff" request just cause for dismissal?

While it’s clear a drug-soliciting former Mr. Lube employee engaged in inappropriate activity while on the job, it’s difficult to say whether just cause for dismissal existed under the circumstances, say Rudner MacDonald LLP founding partners Stuart Rudner and Natalie MacDonald.


The employee, the National Post reports, was terminated after tweeting a request for a “spliff” - a small quantity of marijuana. A response then came from the official York Regional Police Twitter account, asking, “Can we come too?”


Mr. Lube’s official Twitter account declared the matter had been “handled,” the Post reports.


“While it is clear that the employee engaged in inappropriate conduct, it is impossible to assess whether just cause for dismissal existed based upon the minimal amount of information we have,” says Rudner, a Toronto employment lawyer and author of You’re Fired! Just Cause for Dismissal in Canada.


“Employees can be fired for misconduct – as I like to say, ‘just cause is not a lost cause,’ but employers should proceed with caution. There are so many misconceptions in this area. There are no absolute rules and, contrary to popular belief, even stealing is not always just cause for dismissal. If it were, every clerical worker that took a pencil home for her children to use while doing homework would be out of a job.”


When assessing whether there is just cause for dismissal, says Rudner, an employer must follow a two-step process.


“First, the employer must consider whether the employee engaged in misconduct. If he did, then some form of discipline will be appropriate, but not necessarily dismissal,” he says.


“The employer must then assess the egregiousness of the offence and all relevant factors, such as the employee’s length of service, disciplinary record, the nature of the position and degree of trust required, and any mitigating circumstances. This is known as the contextual approach, and is required whenever summary dismissal is considered. Ultimately, the punishment must fit the crime, having regard to all relevant circumstances.”


MacDonald, also a Toronto employment lawyer and author of Extraordinary Damages in Canadian Employment Law, says with the information that’s been made public, it’s impossible to know all the factors that led to the termination.


“If the employer decided to terminate for just cause, and give the employee nothing, as it has the right to do in a proven cause case, then it would be the employer’s burden to prove just cause,” she says.


“In that regard, it could rely on the fact that one of its employees was using company time to commit a criminal offence on social media, which may be sufficient to prove just cause for a court, as this not only constitutes misconduct, but places the company’s reputation at risk, given the criminal element to the offence.


“However, it is important to note that terminating an employee for just cause in the world of work is akin to charging someone with murder in the criminal world; it is the highest and most serious charge an employer can make against the employee. And, if the employer terminates for cause, and does not have cause, the employer may leave themselves open to extraordinary damages, like those of a moral and punitive nature.”


MacDonald says the employee’s drug of choice adds an interesting element to the case.


“While it appears that the employee was using it recreationally, it may be that he was soliciting it for medicinal purposes. If that were the case, then it may also bring into issue that he had a medical disability that the employer had to accommodate, and in terminating his employment, it breached that duty pursuant to the Human Rights Code,” she says.


“In that case, the employer could then be exposed to damages pursuant to the Human Rights Code, amongst them damages for lost wages, and damages for injury to the employee’s dignity, feelings and self-respect. However, based on the manner in which the employee solicited, and the verbiage used, it appears that the employee was soliciting for recreational purposes.”


Has social media impacted the employment landscape, in terms of employee dismissal?


Rudner says the law of dismissal has not changed, but it is being applied to new facts and circumstances.


“Employees could always be subject to discipline, including dismissal, for off-duty conduct. That was rarely relevant in the past,” he says. “Now, however, social media provides a massive potential audience and a permanent records of the conduct in question. As a result, more and more employees are finding themselves in hot water because of what they do online, away from work.”


Rudner says off-duty conduct will be considered misconduct which can result in discipline or dismissal if the conduct of the employee harms the company’s reputation; the employee’s behaviour renders the employee unable to perform his duties satisfactorily; the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him; or the employee’s conduct makes it difficult for the company to properly carry out its function of efficiently managing its work and efficiently directing its workforce.


“In other words, the conduct must have a detrimental impact on the employer or the employment relationship to constitute misconduct,” says Rudner.


MacDonald says companies today must have proper social media policies in place to contain its use.


“I believe that companies must re-examine their current policies relating to email use, and amend them to include strict rules and policies on use of social media, both inside and outside the workplace,” she says. “If a company does not have such a policy, it is critical that they develop one.”


Due to the fact that the use of social media is so widespread, says MacDonald, employees may put anything they want on social media pages, which could potentially harm the company’s reputation.


“For example, while employees are entitled to freedom of speech, if that freedom of speech were to harm the company’s reputation, and link the company’s reputation to the harmful words or thoughts, I believe that the employer should put guidelines in place to limit their use of social media,” she says.


Stuart and I draft these types of policies in order to address these issues, and attempt to limit the company’s liability.


“It should be made clear to the employee that if there is a breach of this policy, that the employer has the right to terminate their employment for just cause. Therefore, if the employee were to breach that policy, because the employee has signed and agreed to it, the employer has a better opportunity to rely on just cause for the termination of his or her employment. Stuart and I draft these types of policies in order to address these issues, and attempt to limit the company’s liability."


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