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Howard Levitt: Why Police Officers Who Donated to the Trucker Convoy Could Be Fired for Cause

posted 2 years ago

Can you be fired for cause, without severance, for off-work activity?

That is a question that might soon be again tested as various police forces learned that their members may have contributed to the trucker convoy even after the courts declared donating such money to be illegal.

As an OPP spokesperson put it this week: “(Police officers) have a responsibility to demonstrate neutrality and remain non-partisan. Any demonstration or expression of views and opinions that may be interpreted as condoning illegal activity is in direct opposition to the OPP’s values and mandate.”

That is assuredly the case. If your job is to uphold the law, breaching it is antithetical to your position. And, for that matter, any employee who acts in a manner to damage the corporate “brand” or image of their employer faces dismissal, potentially for cause.

I had various clients call me, when the names of donors to the convoy were released, advising that their employees names were included and they were experiencing a backlash from co-workers and even customers. My advice was that, since the employees gave money believing it to be anonymous, there was no intention to associate their conduct with their employer and it was not cause for discharge. It might have been if they had given the money publicly and their employer was, say, the federal government or a company which took a public position opposing the convoy.

But what about the police officers? Not only did they believe, but they actually counted on their names never being released since they knew the trouble they would be in. And their names would never have been disclosed but for an illegal hack. Are they in the same position as my clients’ employees?

In the officers’ cases, their donations were deliberately surreptitious precisely because they knew that giving money illegally, in violation of a court order, was inconsistent with the very basis of their jobs. The same would be true of a judge caught breaking the law or a CFO purloining merchandise at a retail store.

There have been several cases over the years of employees fired for cause as result of off-duty conduct inconsistent with their jobs. One professor was fired for cause from Western’s business school, which taught the ethics of business, because of a false insurance claim that he had made. In another case, a social worker with the Elizabeth Fry Society became involved with a man convicted of a sexual offence who was taking sexual abuse counselling through the Society, without disclosing it. She was also found discharged for cause

Sometimes off-duty conduct is cause for discharge, not because it is inconsistent with the job itself but because it puts the employer into disrepute. When an Ontario man was charged but not yet convicted for downloading children’s porn in the privacy of his own home, his employer, Linamar, fired him for cause because the notoriety of having an employee charged with kiddie porn was so damaging to its brand, a large employer that donated generously to children’s charities. His conduct irretrievably repudiated his employment, in the mind of the Ontario Judge hearing the case.

In another decision by Arbitrator Jules Bloch, an employee who cheered on another person shouting sexist obscenities into the camera of a female TV reporter was found to be properly suspended without pay for many months, even though he himself did not shout into the camera.

And of course, although it was never tested in a court, Jian Ghomeshi was terminated, not because of his activities at CBC, but because of his off-duty escapades.

In an era with an increasing emphasis upon corporate governance and C-suite rectitude, I anticipate many more cases of employees being fired for acting inconsistently with their jobs or in a manner damaging their employer’s image. Notably, the more senior the executive, the more associated they are with the employer and the more rectitude expected. As a result, cause for discharge for those senior employees will be easier to establish. And for financial executives and CEOs, it will be easier yet.

BY HOWARD LEVITT

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-why-police-officers-who-donated-to-the-trucker-convoy-could-be-fired-for-cause

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