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Firing staff for off-hours conduct has risks, rewards for companies:Experts

TORONTO - An Ontario company's decision to fire an employee caught hurling vulgarities at a female reporter is earning praise in many quarters, but others are questioning whether the legal risks are worth the public relations rewards.Companies who quickly dismiss staff members for questionable off-hours conduct leave themselves open to lengthy lawsuits, but experts said they may still choose to navigate this treacherous territory in order to bask in the glow of a rosier public image.The benefits of such an approach were playing out on social media a day after Ontario electricity producer Hydro One fired engineer Shawn Simoes within hours of learning that he had appeared in a video making sexually explicit remarks to CityNews reporter Shauna Hunt.Twitter and other social networks were abuzz with praise for the company, saying that Simoes and another man seen on video with him deserve harsh punishments for shouting obscenities while Hunt was covering a Toronto FC soccer game.Employment lawyers, however, said businesses can't enjoy such public praise without venturing onto shaky legal ground.Stuart Rudner, a labour lawyer with Rudner-MacDonald LLP, said swift dismissals can leave companies open to everything from wrongful dismissal suits to expenses for extraordinary damages.Hydro One's approach, he said, goes against the advice he would normally offer his clients."When we work with employers we tell them that if they become aware of any kind of misconduct, they should not react hastily," Rudner said in a telephone interview. "They should take their time, they should investigate, they should assess whether they have cause for dismissal or some lesser form of discipline, and then make a decision."Companies don't always have an easy time of determining whether an employee can be fired with cause, meaning dismissed without being entitled to a severance package.Rudner says the law specifically says that employees should not be punished for their off-hours activities unless their conduct could tarnish the employer's image.The advent of social media, however, has almost eradicated the line between what takes place on and off the job.Dubious actions shared to sites such as Facebook play out before a much larger audience, while profiles on networks such as LinkedIn make it easier to connect the dots between employer and employee, he said."In the past, people might go out for a drink after work and three or four people would make complaints about their manager, but it was a very small audience and there was no record of what was said," Rudner explained."Now, people are more likely to go on Facebook or Twitter and make the same comments with a potential audience of millions and a very clear record of exactly what was said."Even when the questionable conduct ostensibly has nothing to do with the workplace, lawyers say employers try to anticipate the impact such actions could have on the rest of the staff.Edward Majewski, a labour lawyer with Toronto law firm Gowlings, said companies are constantly exploring new ground when dealing with such cases."One of the interesting tensions in the law now is, does the employer have to show actual harm to the reputation or just the possibility that there would be harm. That becomes a really interesting tension," he said.In recent years, many companies have opted to avoid that tension altogether by firing staff who cause public embarrassment.In 2012, clothing retailer Mr. Big and Tall let go of an employee who posted derogatory remarks on a tribute page for suicide victim Amanda Todd.Two schools in Quebec separately decided to dismiss staff members who had outside careers in the adult film industry, even though one woman's porn filmography dated back to the 1970s.And most notably, CBC fired high-profile radio host Jian Ghomeshi after viewing evidence that he had harmed a woman in his private life. Ghomeshi, who is now facing sexual assault charges, has pleaded not guilty and publicly said that his partners all consented to his stated preference for rough sex.One marketing expert says the passionate discussions resulting from the Ghomeshi case have helped turn social consciousness into a hot corporate commodity.Alan Middleton of York University's Schulich School of Business said companies can't rely solely on the performance of their products to get ahead. He said that over the past 15 years, consumers have been showing an increasing interest in how businesses treat people.That concern extends to an employers' dealings with its staff as well as its customers, Middleton said."When brand functions and reputations based on image get closer together, some of the way to differentiate yourself, especially in the service economy, is 'what kind of organization is it? How do they engage in the community?' This is becoming a bit of an issue on brand choice for customers."Middleton said Hydro One has successfully burnished its image by taking a public stand against remarks that many view as misogynistic.Rudner agreed."They've certainly taken some risks, but I think from a public relations perspective they've made the decision that they think is best for them."Follow @mich_mcq on Twitter

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