If remarks get offensive

Employers should resist knee-jerk reactions

By Michelle MacGillivray

If an employee has offensive opinions, and expresses these opinions publicly, there are steps an employer can take, but these situations must be approached with caution. Generally, an offensive remark is not enough to justify terminating an employee for just cause, either in unionized or non-unionized workplaces.

However, such comments may justify discipline, particularly if they threaten the employer’s reputation or productivity, or relate to co-workers or managers. If these comments were made in the workplace, discipline may also be justified as part of the employer’s ongoing obligation to prevent discrimination and harassment in the workplace.

Anti-American remarks

An employer may discipline an employee for comments that would significantly damage the employer’s reputation or seriously offend other employees. For example, in a decision of the Ontario Labour Relations Board (OLRB), an employee was terminated for just cause for saying that “the Americans got what they deserved” in the attacks on the World Trade Centre on September 11, 2001.

The employee made these remarks to a client, which was a US-owned business, provoking a public relations furor for the employer. The union grieved the termination, and the OLRB overturned it, reinstating the employee. The OLRB held that the employer did not have grounds to terminate the employee for just cause. Rather, the employer would have been justified in providing a written disciplinary warning. Termination for just cause, according to the OLRB, was disproportionate to the offence.

Neo-Nazi opinions

Likewise, in another case, an employee was terminated for just cause after his employer discovered neo-Nazi content on his blog, which he maintained in his spare time. While the employer was not the subject of the blog, the employee discussed his work and even named the employer. Because the content of the blog was so abhorrent, the employer was allowed to assume that some harm to its reputation would result.

However, since his posts had not been directed at the employer, and because the employee had been extremely apologetic when his blog became known to the employer, the arbitrator reinstated the employee rather than upholding the termination.

Even if an employee’s offensive behaviour is on regular display in the workplace, it may not amount to just cause for termination. In a recent case in British Columbia, a manager was terminated for her no-nonsense management style and her use of profane language in the workplace. This manager was known as “the little general” around the office, and used profanity in a casual, joking way, but did not swear around customers. She was extremely dedicated to her job, and made efforts to mentor those on her staff. The court found that she was wrongfully dismissed, because “[w]hile some of her conduct may have been inappropriate, she was at all times trying to improve the performance of her employees.”

When evaluating an employee’s behaviour, both courts and arbitrators will look at the general office environment to determine what is appropriate. For example, one arbitrator justified an employee’s profanity at work because swearing was common in that particular workplace. The employee’s supervisor was also a “tyrant” and had made the griever feel paranoid about his work.

One of the employee’s outbursts occurred shortly after he had returned from bereavement leave. All of these circumstances helped to explain the employee’s inappropriate behaviour, and as a result the arbitrator overturned the employee’s termination in favour of a suspension.

Character flaws

In rare circumstances, if an employee’s offensive remarks are of a nature which is completely incompatible with his or her employment obligations, an employee may be terminated for just cause. For example, if an employee deals with vulnerable populations, an offensive opinion may reveal a flaw in the employee’s character that makes the employer unable to trust the employee in his or her position.

In one case, a high school teacher was terminated for just cause because he regularly attended meetings sponsored by white supremacist groups. He had previously been given a written warning for this behaviour. Even though the teacher had never expressed racist opinions in the classroom, an arbitrator upheld his termination because the teacher had failed to set a positive example, as required by the Education Act.

Similarly, an arbitrator upheld the termination of a cultural advisor for Aboriginal Family Services who had been heard making racist remarks in the presence of clients. The employee had a clean discipline record, and no complaints had been made about her conduct in the past.

Despite that record, the arbitrator reluctantly upheld her termination because her employer was making serious efforts to combat the racist attitudes and remarks that its clients experienced in society at large, which meant that her own racist remarks were completely incompatible with the nature of her employment.

In certain circumstances, an employer may be obligated to discipline an employee who has made inappropriate or offensive comments. If an employee’s comments relate to race, sex, disability or any other protected ground under human rights legislation, then an employer must intervene to prevent discrimination or harassment from occurring in the workplace. If an employer does nothing, it may be liable for allowing a poisoned work environment to be created.

Acceptable versus unacceptable insults

For example, in one case before the Canadian Human Rights Tribunal, two employees had a physical altercation in the workplace. During an investigation into the incident, the employer ignored one employee’s claim that the other had made racist remarks. Even though the employer did discipline the employee who made racist remarks for his role in the fight, the Tribunal found that the employer had failed to protect the employee from racial harassment because it ignored the racial dimension of this altercation.

Where the employer does take appropriate action to eliminate harassment in the workplace, it has met its obligations under human rights legislation. For example, in another case before the Tribunal, an employee of East Indian descent complained about racist posters, graffiti, and comments made in the workplace. The employer was found to have reacted appropriately by conducting a prompt and thorough investigation into these complaints, and erasing the racist graffiti.

An employer should not rush to judgment if an employee is accused of making offensive remarks. First, an employer should conduct a thorough investigation to ensure that the employee is not being wrongly accused. If the employee is not found to have made discriminatory remarks, a thorough investigation will show that the employer is serious about preventing harassment in the workplace, and will help to protect the employer from future liability for harassment which may occur without its knowledge.

Second, if the employee is found to have made such remarks, some form of discipline may be appropriate. Finally, if this conduct continues, an employer may take more serious disciplinary actions to prevent the employee from damaging its reputation and creating a poisoned work environment.

Michelle MacGillivray practices labour and employment law in the Toronto office of Heenan Blaikie LLP. The assistance of Emily Shepard, Articling Student, Heenan Blaikie, is gratefully acknowledged.

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