Is Just Cause Termination Possible Based on a Viral Video?

Just cause termination over video call

For those wondering whether you can be terminated for conduct displayed in a viral video, that query has now been answered.  A recruiter from New York was recently terminated after her company came across a video of her accosting German tourists, and telling them to get out of her country, along with disparaging remarks about immigrants.  A spokesperson for her former employer stated, “Our company has a zero-tolerance policy around prejudicial or discriminatory behavior. After conducting a review of the circumstances, we acted immediately and terminated the employee in question.”

Does after-hours conduct outside of work policies justify just cause termination?

In Ontario, the question would spring to mind as to whether this woman’s conduct would amount to just cause and/or wilful misconduct.  It is unlikely to be characterized as wilful misconduct, as there is likely no company policy around after-hours conduct or targeting this specific behaviour outside of work.  Even if there was, it would likely be expected that the employer would nonetheless provide the employee at least one written warning, giving the employee an opportunity to correct their behaviour, before lawfully terminating the employee for cause, if they re-offend.

It is possible, however, that the employee could be lawfully dismissed for just cause, even if the behaviour does not amount to wilful misconduct – this would provide the employee with their minimum entitlements under the Employment Standards Act, 2000, but nothing further by way of common law damages.  Grounds for a just cause dismissal can arise from a number of scenarios.  In this case, the employer could argue that the employee’s xenophobic conduct constituted a marked and substantial breach of the employment contract and demonstrated an intention to no longer be bound by the same.

This situation provides employees with a stark reminder that, in the era of smartphones and CCTV cameras, even off-duty conduct can be subject to their employers’ scrutiny.

What Can Whitten & Lublin Offer with just cause termination?

To better understand your employment rights, we encourage employees to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (647) 951-7460 today.