The video posted online shows a plane load of maskless young people drinking, dancing, and vaping in what appears to be a raucous party on a charter flight from Montreal to Mexico. The images made waves across the country, sparking public anger and a reprimand from the Prime Minister for breaking pandemic protocols and air safety rules.
The party is over
For a few, the public shaming was the least of their problems. When their employers saw the video, at least two of the passengers on that flight were fired. Peter McSherry, an employment lawyer in Guelph said, “What a crazy world we live in. As it turns out, you can never really be off. You think you’re on vacation and then somebody posts a video of you and all of a sudden it becomes an employment issue.”
McSherry said an employer can terminate an employee for an off-duty incident like this, but the question becomes can they do it without compensation. “Unless it was something that would give rise to a potential human rights complaint of discrimination, they can terminate you for engaging in off-duty conduct, but on a without cause basis.” Partying on a plane would not be human right protected ground.
Peter McSherry is warning individuals to consider the consequences of their actions. In this case, bad behavior cost people their jobs because the video happened to go viral.
Can off-duty conduct be cause for termination?
Termination for off-duty conduct depends on a lot of factors, including whether the images clearly link a person to the company and whether they impact the company brand. McSherry said, “A lot is going to depend on whether the employer has policies around such conduct and social media practices and whether they were brought to the employee’s attention.”
McSherry doesn’t think anybody would be interested in taking this kind of issue to trial. Chances are the employer will offer the individual a package because they will view it as brand reputation exercise rather than an employment practices issue.
What about employees who were not behaving badly but appear to be caught up in the frenzy? McSherry said, “The video may not necessarily show what you think it does. An employer who acts on this would have to make sure they do a proper investigation before they fire someone.”
Should a public misstep end your employment?
Should an employee get sacked as punishment for angering the public? A real estate agent on that plane was fired because his employer claimed the employee’s actions put their brand at risk.
McSherry said a company can claim their brand was tarnished by an employee’s off-duty behavior, but he doubts the company would want to take that issue to trial because the defence would bring up the employer’s bad behavior. McSherry said, “If you want to run a trial saying that this employee wrecked your company brand, you’re putting your brand at risk because the defence will bring out all your trash and say your brand was never that good anyway.”
Cautionary tale for both sides
Peter McSherry’s advice to an employer would be to ensure a proper investigation is done and proper policies prohibiting such behavior are in place. “Otherwise, you may find yourself having to back down and pay significant damages for wrongful dismissal.” It won’t be easy for the fired employees to find another job.
For employees, beware of being captured in these types of videos. If somebody else posts images there could be negative ramifications. The attention span of the internet is short but losing a job could have long-term consequences.
To contact Peter McSherry call (519) 821-5465 or visit www.petermcsherry.ca