Similarly, Aaryn (above right) was fired from her job as a model for the Zephyr Talent agency in Austin, Texas. The agency released the following statement: “Aaryn…revealed prejudices and other beliefs that we do not condone. We certainly find the statements made by Aaryn on the live Internet feed to be offensive. Upon much consideration, we have decided to release Aaryn from her contract with Zephyr Talent.”
Were these terminations legitimate?
Because GinaMarie’s employer clearly stated that they “have never witnessed such acts of racism in the past from her”, it is obvious that this was not an existing pattern of behaviour or the result of a progressive discipline process. Even if it had been been, because GinaMarie was a long-term employee, the organization would also have to show that the incompetence or misconduct had not been condoned by a lack of action on the part of the employer over a long period of time (Source).
Were the terminations handled correctly?
Can an Ontario employer terminate someone for behaviour outside of the workplace?
Acts both criminal (arrested for a DUI, possession of child pornography, child abuse or domestic violence) and those deemed “immoral” by an employer (involvement in an extramarital affair, affiliation with a controversial organization) may cause an employer to want to remove someone from the organization, even if the employee’s actions took place exclusively outside of the workplace. The question becomes whether or not they can terminate “for cause” and not have to pay out the appropriate termination pay and/or severance.
- Does the employee’s behaviour specifically damage the reputation of your organization or is it simply abhorrent to the employer? For example, was the employee wearing a company uniform while participating in the activity or was your company named in any media coverage related to the incident?
- Does the employee have a known addiction to alcohol or drugs? If so, this is considered a disability in Ontario and terminating them may result in a Human Rights challenge.
- Does your company have written policies regarding terminations for non-workplace behaviour? Do you have an enforceable “morals clause” in your employment agreement? Have you consistently applied this policy in the past?
- Does the nature of the incident hamper the employee’s ability to perform their work duties? For example, a teacher or camp counselor involved in a public scandal may not be able to work with minors. A sales person or truck driver who regularly visits the United States may no longer be able to cross the border with an arrest record.
Long story short, this process should be handled with careful thought and the advice of HR and/or legal professionals.
Conclusion: "Reality in Ontario"
“At the end of the day, although it may be interesting to watch how this HR saga plays out in the reality TV arena, Ontario employers should remember that hoping to apply these termination practices in their own workplaces would definitely not be reality.”
"Due to the volume of feedback Union Pacific has received from the public about Spencer Clawson’s August 5 comments on the CBS reality show Big Brother 15, the company wants to reiterate that it has taken all the action it can under the Collective Bargaining Agreement until Mr. Clawson is released from the show. Mr. Clawson took an unpaid leave of absence to participate on Big Brother 15. Union Pacific has notified law enforcement of Mr. Clawson’s August 5 comments."