Read our Q&A with Canadian employment law expert, Natalie MacDonald
By now, we’re guessing you must have witnessed how the Internet was set ablaze last week from the release of Pepsi’s latest “tone-deaf” commercial featuring Kendall Jenner. Despite the brand quickly issuing an apology for “missing the mark” in trying to connect its brand to today’s protest movement, many in the social media world called for those responsible for the ad to be fired.
This is a definitive trend we are seeing recently, where companies and employees are continuously on the public stage and in a ‘public courtroom’ of sorts.
C-suites and HR executives often feel pressured to react in real time, and within the public eye. This can result in them taking swift steps to terminate employees right away – sometimes pre-maturely, based on events that reflect negatively on the company.
A few recent examples include:
- Ken Pagan, a former sports journalist from PostMedia who was virtually reprimanded and shamed for throwing a beer bottle on the field during a baseball game in Toronto. The company responded by terminating Pagan shortly after the incident.
- A Hydro One employee was initially terminated due to a public outcry for his role in supporting verbal obscenities that were targeted at a female TV reporter. The company later quietly rehired this individual due to an arbitrator’s ruling.
- At this year’s Academy Awards, two accountants from PricewaterhouseCoopers were publicly named after they mistakenly provided the wrong envelope for the show’s Best Picture announcement. The Academy quickly announced that both accountants were officially banned from the Oscars. Though they didn’t lose their jobs at PwC, the public outrage was so intense, both accountants had to hire bodyguards after receiving death threats.
Such incidents really beg the question: to fire or not to fire? From an HR perspective, when companies find themselves amid a social media crisis, are they too quick to appease the public, or are they well within their rights to take immediate action?
Below, Natalie MacDonald, managing partner from the leading employment law firm, Rudner MacDonald L.L.P. weighs-in on key considerations in this context:
Q: From a legal standpoint, do you feel that some companies are reacting too quickly in order to appease the public?
A: I believe that it is necessary that companies review the situation and assess what the implications are from the behaviour considered, and act accordingly. If the company’s reputation will suffer as a result of the bad behaviour, then, the employer is within its rights to be able to terminate the employment. However, this does not necessarily equate to terminating the employment for just cause and giving them nothing. Terminating someone for just cause in the world of employment law is the equivalent of charging someone with murder in the world of criminal law. It is the highest charge that the employer can level against the employee. If allegations of just cause are substantiated, it enables the employer to terminate employment without providing the employee with reasonable notice (“severance package”) of his or her termination of employment. In some cases, there need not be a termination, but rather the impugned behaviour may require a strong reprimand. Each case is factually specific and each situation must be assessed individually.
Q: Is there a growing concern on publicly reprimanding employees for their mistakes, or are companies protected by their actions as long as they follow a certain legal protocol?
A: As long as the employer is fair and reasonable with the employee, and the action taken is carefully considered and defensible at law, an employer should not be concerned about repercussions. We must remember that employers can dismiss employees for any reason, as long as it is done fairly and reasonably.
Q: From a legal standpoint, are the lines starting to blur in terms of how employees represent the company both at work and on their personal time?
A: Yes, definitely. This is owed to the age of social media. Our personal and professional lives are increasingly intertwined. Today, an employee’s actions caught on camera can be transferred instantly with the click of a button. If the employee’s behaviour tarnishes the employer’s reputation, the employee should be reprimanded or terminated.
Q: At a time where the public voice seems to hold so much weight in our digital media age – what legal considerations should companies keep in mind proactively, in anticipating and dealing with public mistakes or actions from employees?
A: They must consider risk to their reputation. The definition of the workplace has now expanded to include events that may be work-related, but occur outside of the office. Therefore, how an employee behaves in an extension of the office (at these outside events) matters. The employer has a right to expect that the employee behaves outside the office as he or she would inside the office. Even if the employee is on his or her own personal time, an employer has the right to expect that the employee does not embarrass the employer, or have his or her conduct reflect poorly on the organization. If it does, the employer is well within its rights to take steps to disassociate itself from the employee.
In these changing times, we are walking away with three key takeaways:
- Employees must be made aware that if their behaviour tarnishes an employer’s reputation, even if their actions take place outside the office, they will still be held accountable. Today’s popular social media disclaimer, “My opinions are my own” only go so far.
- When facing a public outcry for wrong-doing on an employee’s part, to fire or not to fire is not necessarily the only choice an employer faces. What’s most important to protecting the company’s reputation, while also considering HR and legal consequences is that the impugned behaviour is receiving an appropriate reprimand.
- As Natalie noted: employers today have a right to expect that their employees behave outside of the office as they would behave inside the office. Even on personal time, they must not embarrass the employer. This is an important point for internal communications, so employees understand that they are always representatives of their workplace.