Global BC reported today that 21 year old Connor Mcilvenna has been fired by RiteTech Construction in Delta after he was identified as having been involved in Wednesday’s riot in Vancouver. It’s not entirely clear to what extent Mcilvenna was actively involved in the riot, but after acknowledging his presence on his Facebook wall, several people complained to the employer listed in Mcilvenna’s Facebook profile.
Mcilvenna’s firing raises a timely legal question: can employers fire employees solely for having been involved in the Vancouver riots? As with all legal answers, it depends. In Mcilvenna’s case, quite possibly.
First of all, any employer can terminate any employee “without cause”. As long as the termination isn’t discriminatory on one of the protected grounds set out in BC’s Human Rights Code or otherwise retaliatory (e.g., firing a whistleblower), the only consequence for terminating without cause is that an employer has to provide reasonable notice of termination or pay the employee in lieu of providing notice. The period of reasonable notice applicable to a particular employee may be set out in the employment contact or collective agreement, or determined at common law, and is governed by the statutory minimums set out in the Employment Standards Act.
We don’t know whether RiteTech fired Mcilvenna for cause or not. For the sake of a more interesting article, though, we’ll assume he was fired for cause and consider whether doing so will hold up in Court should Mcilvenna elect to sue for wrongful dismissal. (Ignoring, of course, that it would be *really* dumb to draw even more attention to himself by airing out this dirty laundry in open court.)
Generally speaking, an employee can be fired for his private conduct if that conduct is “wholly incompatible” with the proper discharge of his employment duties, or if it would tend to prejudice the employer. The really easy cases of incompatibility include situations where child care workers are convicted of sexual abuse. For obvious reasons, they can be fired with impunity.
Mcilvenna does carpentry work. We don’t really know what involvement he had in the riot, but if he was actively vandalizing property it could fairly be argued that he can no longer be trusted as an employee in the construction business. If he was “merely” (with air quotes) present in the area of the riot after the VPD had read the Riot Act proclamation requiring him to disperse peaceably, it’s a tougher case to make that his presence at the riots was incompatible with his employment duties.
Fortunately for RiteTech, the second part of the legal test for terminating without cause for private conduct relates to “prejudice” to the employer. Because Mcilvenna published his involvement (to whatever extent that may have been) in the riot on Facebook — in a place where his employment with RiteTech was also made known — the public’s outrage against Mcilvenna may well have spilled over to his employer. Given the choice, would people hire RiteTech to perform their construction work, or some other company with no known rioters in its employ?
The public outrage over the riot — entirely appropriate, in our biased view — is a unique factor to consider here. People demand justice, and that may well mean that consumer choice will be driven for years to come based on how businesses respond to known rioters among their staff. If RiteTech could demonstrate that negative publicity associated with Mcilvenna’s employment would affect its business, the courts would likely uphold the dismissal without cause.
Employers grappling with how to deal with employees identified as having been involved in the Vancouver riot should consider the terms of any specific employment agreements. Some contracts may require a conviction for certain specific offences before an employee can be fired for off-duty conduct, though, as a practical matter, it’s doubtful that any of the lower-IQ punks involved in the riot would have employment agreements with that level of sophistication. If the employment agreements provide for relatively short notice periods — without violating the minimal requirements of the Employment Standards Act — it may be worthwhile to terminate “without cause” and simply pay out in lieu of the appropriate notice period to avoid the headache of a potential wrongful dismissal claim. If termination for cause remains an option, seek legal advice on whether the dismissal is likely to pass muster with the courts.