When Opinion Offends Employment

Dismissing the activist

When Opinion Offends Employment

These days you don’t need to look very far to find widely publicized videos of individuals involved in activism or protest, be it obnoxious convoys, staged soup-throwing, or other civil disobedience. The ease of identifying the participants, as well as the typical online outrage that follows, leaves employers considering the difficult issue of whether they can continue to work with an activist employee and/or whether they are within their rights to dismiss. The answer is, as always, it depends…

As a general rule, even without “just cause,” an employee can be dismissed at any time and for any reason, as long as they are provided sufficient notice. A failure to provide notice makes a dismissal “wrongful,” not the reasoning for the act itself.

However, special rules exist for federally-regulated employees or members of a union (just cause is typically required) and dismissals made for discriminatory reasons, such as age, gender identity, disability, or “political belief,” are prohibited by our Human Rights Code (subject to accommodation, discussed below).

Adding another layer of complication is that public sector employers may also need to consider the right to free expression in the Charter (a potential subject for its own article).

The question of just cause for off-duty activity is governed by a five-factor analysis of whether the conduct (1) harms the employer’s reputation, (2) renders it difficult for the employee to perform their duties, (3) leads to the refusal of others to work with that employee, (4) is a serious breach of the Criminal Code, and/or (5) makes it difficult for the employer to operate or direct its workforce.1 At their heart, these factors seek to assess the proximity of the (mis)conduct to the workplace. Accordingly, employers sensitive to reputational damage are wise to implement policies touching on that sensitivity in the context of employee activism to set the foundation of this connection prior to an issue arising.

On the question of discrimination, the protected ground of “political belief” has received recent attention from the Human Rights Tribunal, alleged as a basis for noncompliance with pandemic restrictions. In dismissing a complaint against vaccination passports, the Tribunal clarified that the protection relates only to the expression of a political belief, and that it does not generally function to allow the disregard of established rules.2

In dismissing the vaccine passports complaint, the Tribunal relied on earlier case law featuring a police officer who, in his personal time, engaged as an outspoken member of a group in favour of decriminalizing drugs.3 Although the officer had taken steps to identify his advocacy as his own personal views and not those of the police, and had cleared some speaking engagements with his superiors, the officer was directed to cease or otherwise limit his comments.

The Tribunal found that the employer’s directions infringed upon the protection of political belief, save and except where comments could not be accommodated as overly critical or disrespectful of the police. The Tribunal made it clear that an employee may breach their duty of loyalty through the content of off-duty political speech as well as the manner of its expression, and that accommodation was not required for political activity or speech clearly incompatible with an employee’s duties (the example given being a Revenue Canada employee refusing to cease public criticism of the government, including by comparing Pierre-Elliot Trudeau’s government to the Nazis4).

While there are many caveats, an employee may be dismissed for their activism depending on its content and manner of expression.

  1. Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4. |
  2. Class of Persons v. Horgan, 2021 BCHRT 120. |
  3. Bratzer v. Victoria Police Department, 2016 BCHRT 50. |
  4. Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455. |

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