A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

So, Can You Fire a Terrorist?

So, Can You Fire a Terrorist?

Throughout the terrible events in Charlottesville, one of the recurring themes on social media has actually surprised me at how often it gets re-posted. It appears that a number of the protesters in Charlottesville spouting hateful, white nationalist ideology subsequently lost their jobs because of their attendance. 

While the specific details are unclear, it is most likely that the individuals were fired just for attending, and the subsequent shame their public identification brought on their employers. 

The question is – could that happen here? Or, as it’s posed above, could you fire a terrorist?

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The answer is not as simple as you would expect, but let’s break it down as we go. 

Terrorist is, of course, a loaded term, one which I have used here as an umbrella to encapsulate neo-Nazis and the like. The first major breakdown we must make though is that there is a major difference between someone who espouses an unpleasant ideology, and someone who does hateful things. While both may colloquially be seen as terrorists, thoughts versus actions make a tremendous difference when it comes to termination. 

Diversity of thought and opinion is one of the hallmarks of democracy, and while we may not agree one iota with our co-worker in the next cubicle, an individual’s political thoughts and beliefs are rarely, if ever, enough to get them fired. Granted, the divisive American political climate has called even that into question, but let’s run with it as a guiding principle for now. 

However, let’s say in the event of a situation similar to Charlottesville, where your employees showed up at a rally and were publicly visible espousing hateful and disgusting ideology – could you terminate them for their off-duty conduct? 

Again, there are some key factors here to consider. The first key one that jumps to mind is whether or not the individual is a member of a union. That is, of course, not to say that union members automatically get a ‘free pass’ at reprehensible behaviour – far from it! However, if the employee is terminated for what they feel is representing their true beliefs, and they are part of a union, it is more than likely that the union will file a grievance against the termination.  

Yet, what if the employee, like 70% of employees in Ontario, does not belong to a union, and their employer learns that they spent their weekend participating in some truly loathsome politics?

Again, the answer is complicated. Yes, employees have in the past been terminated for off-duty conduct. Remember that an employee can be terminated for any reason at any time without cause, so long as they receive the proper notice, which is usually paid out in cash. Terminations with cause though, where the individual is owed nothing at law, have a much higher legal threshold and thus are much harder to uphold.  While it is almost always possible to terminate an employee without cause, terminating an employee with cause for their political beliefs, or even their political actions, may be an uphill battle. 

The specific circumstances of the incident will also make a difference depending on the level of connection between the incident and the workplace. For example, an employee who appears in news footage doing something morally reprehensible while foolishly wearing a work uniform will most likely be dealt with differently than an individual whose actions are, at least on a surface view, not connected to their employer. 

That said, there might be some interesting exceptions. Under Ontario’s Human Rights Code, an individual cannot be discriminated against in employment based on their creed. While the Code contains no clear definition of ‘creed,’ it is broadly interpreted as an individual’s deeply held belief system. In other words, there may be grounds, however far-fetched it may seem, for an individual to claim an ultra-nationalist belief system as their creed. If they were to be terminated based on said creed, well, there may potentially be a claim for a human rights violation. 

There are other legal concerns that employers should also be aware of. Under Ontario’s Occupational Health and Safety Act, employers broadly speaking have a duty to keep their employees safe at work, and a duty to investigate any incidents or reports of harassment. Thus if an individual’s actions are creating a safety risk, or if they are creating a harassment situation within the workplace, then the employer is responsible for taking appropriate measures. 

For employers, the situation is obviously a complex one, and no two cases are the same. An individual’s actions must be assessed carefully, and employers would be wise not to act rashly, or based purely on an emotional response. It is worth noting that U.S. employment law is very different, and it is not as simple or straightforward dismissing employees here. An employment lawyer can help you make these decisions properly and with forethought, while focusing on the best interests of your business.

For employees, social media has completely blurred the line between our personal and professional lives. To assume that your employer will never catch wind of your activities outside the office is both naïve and irresponsible. While your employer may not be able to control what you think in your own head, they will certainly be monitoring your actions, and may take action themselves if it impacts their business or their other employees. That said, if you do feel that you have been discriminated against based on your politics, an employment lawyer can help assess your situation and determine what your options may be.

The bottom line is that while hate is never okay, losing a job because of your beliefs is not as straightforward as you might think. 

Who Runs The World? Well...

Who Runs The World? Well...

Idle Hands? You may have options after all

Idle Hands? You may have options after all