By David Brown

Shawn Simoes, the embattled former Hydro One employee, had a really bad week. As a result of a barrage of sexist taunts made to CityNews reporter Shauna Hunt, within the span of a few days he has gone from being a highly paid analyst for the utility enjoying a night of soccer with friends, to having the Internet brand him the world over as a sexist and a misogynist.

The recent “FHRITP” trend of shouting offensive and sexist obscenities on live television is deeply disturbing. In a world where organizations of all stripes seem more sensitive to discrimination, it’s unbelievable that this is occurring and that some will minimize exchanges of this nature as simply a bad joke or even as a poor judgement call.  It’s not a gag, and if it was, Hydro One is not laughing. Simoes was fired directly as a result of his sexist tirade.

But can a company fire an employee for an occurrence completely removed from the workplace? The simple reality is that yes it can.

Job security can be very tenuous for non-unionized employees in Canada, as employers have the right to terminate employment at any time and for any reason, provided that the motivation for terminating is unrelated to a ground protected under our human rights legislation.

The bigger question in Simoes’ case is whether he’s entitled to compensation for his termination. That will come down to whether Hydro One had “just cause” and whether Simoes’ conduct amounted to a fundamental breach of the employment contract.

Normally, just cause is raised for conduct occurring at work such as stealing, dishonesty and insubordination. However, it shouldn’t really come as a surprise that off-duty conduct can also be examined.  Depending on factors such as the employee’s role in the organization, the nature of the employer’s business and whether the company’s public reputation is impacted, off-duty behaviour can justify termination for just cause. In those instances, the employee is not entitled to any compensation or severance pay.

Time may tell whether Simoes was terminated for cause or whether he was wrongfully dismissed. However, from Hydro One’s perspective, it doesn’t seem to matter. They didn’t want him on board, and they had every right to terminate him. As Hydro One’s CEO Carmine Marcello stated in an interview with The National Post:

“We looked at it through a filter of our core values that we’ve developed over time and the answer was obvious and we decided to sever our arrangement with the employee. […] We don’t want it in the workplace, end of story.”

Hard to argue with that. I wouldn’t want it in my workplace either.

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at dbrown@pushormitchell.com.

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.