A year ago today, we wrote an article for Business in Vancouver addressing the Capitol riot and the employment law implications of employees expressing extremist views and/or participating in public demonstrations in support of those views. While the recent Canadian “Freedom Convoy” protests (the “Protests”) is of a different nature and scale, the same legal principles apply.
Can I fire an employee who is participating in the Protests?
Generally, an employee’s activities outside of work are not considered grounds for discipline. However, if the employee’s actions prejudice or could reasonably be expected to prejudice the interests or reputation of the employer, the employer may discipline and, in serious cases, terminate the employee for cause.
For example, if an employee uses a company vehicle to attend the Protests and/or wears a company uniform, the use of the vehicle could prejudice the interests and reputation of the company. Similarly, if an employee uses a social media account that is associated with the employer, it could arguably affect the company’s reputation. Depending on the circumstances, including the nature of the employee’s position in the company, the employer may have just cause to terminate the employee without notice or severance.
Human Rights Code
On the other hand, employers will have limited options if their employee attends the Protests on their own time, peacefully and without drawing any attention to the employer. In BC, the Human Rights Code prohibits employers from discriminating against employees for their political beliefs. The protection is not limited to just holding a belief, as it covers expressions of political opinions and even lawful actions such as peaceful protests.
However, the Human Rights Code will likely not protect an employee whose beliefs and/or actions are violent or unlawful, regardless of the underlying political motivation. For example, if an employee advocates for harming certain people (e.g. politicians) or harms and harasses co-workers or members of the public, then an employer may be justified in disciplining them or terminating their employment.
It remains to be seen whether the Human Rights Code will protect support or participation in the Protests, particularly the more disruptive aspects of the Protests such as the border blockades and the protest in Ottawa. Such cases will be determined on a case-by-case basis and will turn on the particular facts of that case.
The relationship between employment law and political expression, including civil disobedience, is difficult to navigate, to say the least. Even in cases where employers feel strongly that their decision is morally or ethically justified, there may be legal principles and considerations that protect an employee from discipline or termination. We strongly recommended that employers seek legal advice before making any such decisions.
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