Off-Duty Conduct and Discipline: The FHRITP Case

This week a media firestorm was sparked over comments made by a Hydro One employee (Shawn Simoes) to Shauna Hunt, a CityNews Television Reporter, outside a Toronto F.C. game. Shortly after the televised exchange, Hydro One made the decision to terminate Simoes' employment.

Mr. Simoes was present when another man yelled into Ms. Hunt's Microphone during a live broadcast, "F__k her right in the p___y." Yelling this phrase, abbreviated to FHRITP, was popularized in a series of fake news reports in early 2014. Ms. Hunt, visibly upset at this act, challenged Mr. Simoes and his friends who had stood close by. Mr. Simoes did not repeat the phrase but said on live television to Ms. Hunt that what had transpired was "f____ hilarious." Before adding "you're lucky there's not a f___ vibrator here."

The incident took place on Sunday. Within 24 hours, Hydro One had fired Mr. Simoes.

The incident has spawned many questions and provided ample fodder for the water-cooler: "What about Mr. Simoes' right to free speech?" "What about individual rights to privacy?" "What if he is a member of a union?" The list goes on. Within this swirling vortex of questions about rights and legal intersections, two issues should be clarified:

1. You can be fired at any time, for (almost) any reason

The long and short of it is that an employer in Ontario can fire a non-unionized employee at any time and for any (non-discriminatory) reason. It could be as arbitrary as "I don't like that you wear a green tie with that yellow shirt, you're time here is over."

In light of this, Hydro One's decision to fire Mr. Simoes, which came swift and firm, was completely legitimate. The situation for Hydro One, however, becomes complicated if the termination, as it seems, was carried out on a 'just cause' basis. As reported in the media, Mr. Simoes' violation of the Hydro One Employee Code of Conduct formed the basis for the termination.

A just cause termination can be a difficult thing for an employer to uphold. It requires that a relatively high threshold first be met and that the alleged misconduct has damaged the employment relationship beyond repair. Ultimately, any judge will consider whether the punishment fits the crime. This assessment may take into consideration the employee's length of tenure, his prior record, his remorse, and whether a lesser sanction, such as a suspension, may have been more appropriate. Moreover, if Mr. Simoes is part of a union, he may be able to grieve his dismissal and seek reinstatement, potentially with back-pay for time lost.

Really, a just cause termination, commonly referred to as the 'capital punishment of employment law', is about as bad as it gets. The affected individual will likely struggle to access EI benefits, and will not receive any kind of severance package on departure.

2. An employer policy and/or off-duty Conduct is enough only sometimes

To terminate for cause, Hydro One must rely on Mr. Simoes' off-duty conduct at BMO Field. The first question that comes to mind is: does the Hydro One Employee Code of Conduct apply when you are not, in fact, functioning as an employee? The answer is 'maybe'. In order for Hydro One to rely on its Code of Conduct in these circumstances, it will be necessary for it to show that the Code applies to the misconduct in question, that the Code had been brought to Mr. Simoes attention and that any similar prior incidents received a comparable response.

The ability of an employer to rely on off-duty conduct to support a just cause termination is not straightforward. It is contingent upon a number of considerations: the objective severity of the conduct, whether the employer or its brand was detrimentally affected and the nexus between the off-duty conduct and the individual's job.

In this case, given the haste and public nature in which Hydro One reached its decision to terminate - it is unclear what, if any harm the company may have suffered. In fact, given the rapid manner in which things progressed from incident to outright termination, it is difficult to assess whether people would have connected the dots and focused on the fact that Mr. Simoes was a Sunshine-listed Hydro One employee absent Hydro's swift, and very public, decision to dismiss him.

While hindsight is 20/20, and Hydro One is a company which has received its fair share of public scrutiny over the past number of years, perhaps the company would have been better-advised to take a more precautionary approach. In the circumstances, while the dust settled, the company could have placed Mr. Simoes on suspension, carried out a thorough investigation and then reached a conclusion. Even if the media had got wind of the story, the company would have been well-positioned to respond to any potential criticism with an assertion that 'the matter is being taken very seriously. Mr. Simoes was placed with immediate effect on an indefinite leave while an investigation is being conducted.'

If you have recently lost your job due to alleged off-duty conduct, or you are an employer trying to navigate an incident of this kind, please contact us directly at: 613-238-4430 or info@vwlawyers.com.