Canadian HR Reporter

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And so I would think a judge would just have a little less toler- ance for some person like this — apparently a well-educated per- son, given the title of his position — feeling comfortable enough to reach into the television sets of all these people out there and, in a very brazen way, just making these offensive statements. "at has to play into it too, the current sensitivities of the courts." After the Ghomeshi scandal, it's a different ballgame, said Howard Levitt, senior partner at Levitt & Grosman in Toronto. "ere has been a sea change that flowed from that…. so five or 10 years ago, this would never have happened, and also the law's evolved in the last decade, in this area. ere's always been cases involving off-duty conduct but it's usually employees who are at some sort of retreat… and they do something silly — that's what's generally the off-duty conduct — as opposed to somebody do- ing something on their own time, nothing whatsoever to do with the employer, and the court found it to be cause for dismissal because it impacted the brand." e Crown corporation would have felt the heat if it didn't take steps to distance itself from the situation, said Daniel Lublin, a partner at Whitten & Lublin in Toronto. "(Hydro One) didn't want a cir- cus and I think they just decided to nip it in the bud and said, 'Look, let's just rid of this guy. What's it going to cost us anyway?'" Social media plays a huge part in all this as the situation blew up in less than a day, said Cole Lefeb- vre, an associate at Miller om- son in Calgary. "The reputational loss that can happen to a business due to it expanding out of control quite quickly can be a bigger cause for them terminating somebody for something like this," he said. "With social media, there's way more out there, people are putting themselves more and more in the public and not realizing the con- sequences of that and what can happen to that, so I think it's going to happen more and, in the last 10 years, its definitely been coming up more." With a mob mentality, situa- tions can catch on and get out of hand quickly, said Lefebvre, cit- ing the 2013 example of the Brit- ish public relations executive who tweeted a racist comment while flying to Africa and was fired be- fore she landed. "(Social media) could neces- sitate quicker responses from employers and could definitely tone down the reliance on actual evidence of reputational harm instead of the potential for it," he said. In certain cases, judges or ar- bitrators will say they need proof of the damage to reputation, said Lefebvre. "What they look at is how a well-informed, fair-minded member of the public would have thought in that case. So they look at that. And, at least in this case, you can see that… it's lot easier now to gauge what the members of the public would say." Codes of conduct While it was unclear whether Simoes was terminated with just cause, Hydro One did the right thing, according to Lublin. "Hydro One is an important public employer in Ontario and they have a reputation and image that's elevated above a mom and pop sandwich shop or a garage so they had to take action to enforce their policy," he said. "If they didn't take steps to dis- tance themselves from this indi- vidual, what does it say? ose conduct codes are designed to bring attention or to caution em- ployees from doing stupid things outside of work. And if employees violate that principle, they can and should be fired." ere's always the freedom of speech argument but that's mod- erated by other laws including the Canadian Charter of Rights and Freedoms and criminal law, said Gale. And whether an employee is in the workplace shouting out offen- sive slogans or on TV, everybody who works with him can readily identify him, he said. "I would imagine there'd be a fair amount of uproar in the work- place the day after he went on air and I think Hydro One is entitled to make decisions about main- taining some degree of civility in the workplace. I could see how a number of employees, male and female, would be offended and just find it distasteful to work alongside somebody who is pre- pared to very publicly display his attitude (toward) women." However, an employer should first do an investigation, said Gale. "e fact that they acted quick- ly, I guess, was intended to convey their total opposition to this type of attitude or statement and to be reassuring to the rest of their em- ployees that 'We don't condone this.' But I would have hoped that they would have, before they threw him down the elevator shaft, they at least gave him an opportunity to make a comment." Union environment Even if Simoes is a member of a union, the union might not want to take the case if he files a griev- ance, said Levitt. "e union has the legal right to do this, they may say, 'We don't want to be associated with this cause, we don't want to spend our members' money on a cause that's antithetical to our union's values. And I wouldn't be surprised if they say his only recourse is…a duty of fair representation at the On- tario labour relations board, and the historical success rate of such cases is under one per cent." ere are a lot of mitigating cir- cumstances to consider, such has the employee's length of service and disciplinary record, he said. "If he wasn't a union employee, probably the same kinds of fac- tors would apply but I don't think Hydro One cares very much be- cause my view is they did it as a PR exercise more than anything else — they wanted to make a state- ment publicly and get themselves some great free advertising, which they've done." Too harsh? But with the swell of negative pub- licity, has the penalty become too harsh? A suspension may have worked just fine as it's a pretty serious thing to be suspended, said Lu- blin. And Simoes could have ar- gued he was drunk, he's a good employee and firing is too severe. "All those arguments may have merit," he said. Hydro One probably didn't intend for Simoes to never work again but he will likely have dif- ficulty finding another job, said Levitt. "He's in a real conundrum… Everywhere you go, everything you do, you'd better be prepared to justify it because it can come back to haunt you." Situations blow up with mob mentality ZERO TOLERANCE < pg. 1 and all unions have to do that." Besides overall communication, what needs to be addressed is how to make the complaint system informal and accessible enough that people aren't afraid of it, she said — which is why the guild just passed a new policy on this. "People generally know that there are processes within the collective agreement and the CBC policies to raise issues, but they're afraid. And they're afraid because in the CBC's case, probably more so than in other workplaces… so many people are wanting to work there so badly. It is a place where people aspire to work, and where so many people are in some kind of non-permanent work environ- ment, so they're on contract or casual," she said. "At the CBC, depending on the year and the place, as many as 25 to 30 per cent of people at any one time can be in that kind of arrangement. So this is a big problem where you have a col- lection of people who are largely non-permanent and feel very vul- nerable as a result. at added to the whole crisis." Moving forward Going through a workplace cri- sis can be a very emotional and taxing experience, and it can be tempting, once the recommenda- tions roll in, to make quick fixes and then move on, said Williams. ere is often the temptation to simply make a change in lead- ership, but whether doing so is a good idea really depends on the context — it's not a cure-all solu- tion, she said. "(And) there has to be some type of anticipation of this per- son coming, what this new leader would bring, what the expecta- tions are, and a really thorough introduction and onboarding process so that you don't further impact any mistrust that exists in the environment based on some event that's been traumatizing." ere's also the temptation to shift the focus away from an in- cident that has already received significant negative attention, said Williams. "at is a temptation because, first of all, the impact of the event, the process of trying to rectify the event or address it so that it's resolved to some degree, that's very consuming for an organi- zation. And depending on how high-profile the incident is, it can be all-consuming for a period of time. So, oftentimes, employers may not think past, for example, the investigation." But it's critical that employers recognize that although the in- vestigation is complete, there is still work to do. "e reality is that we're still dealing with an employee base that's impacted," she said. CBC < pg. 8 "Everywhere you go, everything you do, you'd better be prepared to justify it because it can come back to haunt you."

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