Canadian Lawyer

52 N o v e m b e r / D e c e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m institution, it can clearly communicate to the employees that it holds honesty and integrity to the highest level. And it expects the employees to uphold these ideals inside and outside of work because it goes to the trust that the public has in them every day." But major corporations like banks have tens of thousands of employees. Is it rea- sonable to expect all of them to adhere to a high standard of "honesty and integrity" 24 hours a day? Can they be fired with just cause for posting racy photos on Facebook if their day job is to sell insurance? "I think it would be difficult," says Thomlinson, "but I don't want to say never. It is an objective test but it is very much established through an examination of the employer and the behaviour in question. We look at a whole variety of things. First we see if there are human rights factors at play. And if so, are we dealing with someone who is suffering from some form of disability? And if that is contributing to their behaviour, firing is unlikely an option as it wouldn't be seen as appropriate accommodation." Alison Strachan, of Stewart McKelvey, agrees. "You wouldn't have just cause to terminate simply because you know some- one is beating their wife. Just cause doesn't allow the employer to impose his or her morals onto the employees — only when those morals would affect the employer in some way. There might be a reason there are not a lot of these cases reported in the employment context, and yet a lot of them in the unionized context: In employment law, there are ways to deal with the problem without relying on just cause." In other words, employers can get rid of the offender and the bad behaviour by saying "here's a cheque, there's the door." One relevant Canadian case is 2005's Kelly v. Linamar Corp. from the Ontario Superior Court. "Here the employee was charged with but not convicted of a crime of moral turpitude — one which most members of the public would find to be repugnant and reprehensible — allegedly committed on his own time and off com- pany premises," says Strachan. "He was downloading a lot of child pornography, and he was a manager. . . ." The employer, Linamar, supported child-related activities and it had employees with young families, some of whom the defendant managed. So there were links between the downloading of child porn at home and his tasks at work. Both Strachan and Thomlinson have seen changes in their practices over the years. Thomlinson says employers are more aware of problems that could arise from employees' access to social media: a nega- tive tweet, for example, or a public rant on Facebook. What used to be said to a few is now shared online to thousands or more. Strachan says employers have started to look at things a little more deeply than they used to. "In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc., an employee posted 'vicious and humiliating things' about a co-worker on Facebook." His job was terminated as a result. The union tried to get the work- er reinstated but the arbitrator refused. Strachan says: "This case appears to be lEgal rEport/lABouR & eMploYMenT MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL CANADA LAW BOOK ® ORDER# 804218-62303 98 2 volume looseleaf "OUJDJQBUFEVQLFFQDPTU QFSTVQQMFNFOU supplements per year Supplements invoiced separately 0-88804-218-3 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.caSTXFMM.cPN Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. ntitled-1 1 2014-10-23 7:22 PM 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected all_CL_Mar_12.indd 1 12-03-13 2:27 PM

• Cover