A Sunshine List employee is losing his job after a vulgar televised incident at Sunday’s Toronto FC game – sparking debate over whether someone should be fired for what they do away from the office.

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The confrontation between CityNews reporter Shauna Hunt and fans at Sunday’s Toronto FC game featured several bystanders mimicking a viral trend seen across North America, in which on-air reporters are harassed with the phrase, “F--- her right in the p----.”

Hydro One is taking steps to fire Sunshine List employee Shawn Simoes, who held an annual salary of $106,510 in 2014.

The Star spoke to several Toronto-based employment law experts about the potential legal dilemmas facing Hydro One, or any employer who seeks to dismiss an employee for an incident that isn’t directly work-related.

David Doorey (DD), associate professor at York University, employment law expert Howard Levitt (HL), and labour lawyer Andrew Langille (AL) weigh in.

Q: Can an employee be fired for an out-of-work action?

AL: “Certainly, an employer can fire an employee whether they’re unionized or non-unionized for off-duty conduct if it reaches a certain threshold.”

HL: “The law is very similar for union members and non-union members in this area. If you do something which damages your employers brand, do something as outrageous as he did and it gets into the media so it is potentially embarrassing to your employer, it’s cause for discharge.”

Q: Does the profession of the dismissed employee matter in a legal context?

DD: “Yes. If he has to work closely with others (especially women), supervise others, or work with customers who may be offended by his conduct, then that can work against him. If he is in a management position, he may be held to a higher standard, since he is responsible for implementing employer policy, including avoiding sexual harassment.”

Q: Does it make a difference if he is a member of a union?

DD: “Yes. If he is non-union, then the employer can clearly fire him, and the only legal question is whether it can do so without first giving him notice or paying him an amount of severance.”

Q: What happens if he is not a member of a union?

AL: “In the case of non-unionized employees, the employer can terminate someone’s employment for almost any reason as long as they payout the appropriate notice period.”

DD: “For a non-union employee, the only issue is whether the employee should have been given notice of termination or not. If the employer has strong cause, then no notice is needed. The legal fight is about money, not about the employee trying to get his job back. A court will not reinstate an employee who is fired, it will at most order the employer to pay damages for not first giving proper notice.”

Q: What happens if Simoes is a member of a union? Can he fight his dismissal?

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HL: “There’s certainly a chance. He’s going to say he wasn’t the one who shouted the retort. He was essentially someone cheering that person on. He might say it’s not that serious, it’s not related to my job obviously. It was only serendipitous that anyone became aware I was a member of Hydro One. He isn’t in an environment that really affects the company’s brand at all. An arbitrator may well say it’s not cause for discharge. I think he’ll at least still get some sort of suspension.”

DD: “If he is unionized, then he could file a grievance and the employer would probably have to establish it had 'just cause' to terminate him based on his conduct at the TFC game. If an arbitrator ruled there was not proper cause, the arbitrator can reinstate the employee to his old job.”

AL: “In the case of a unionized employee, there needs to be just cause. I would say that going on television and making sexist comments about a reporter would meet that bar in all likelihood.”

Q: Can the union reject the case?

HL: “Interestingly the unions don’t have to take cases. The union could decide it doesn’t believe in this cause and doesn’t want to be associated with this person. The person may be left without a remedy.”

AL: “The question would be: would the union feel that it’s worth it to proceed to a grievance over the termination? They might agree with the employer’s reasoning on this, that it would damage the overall public perception of the employer. On the other hand, they may say that the guy has a good track record with the employer, this was an isolated incident, and they may be willing to go to bat for him. I think it could go either way. My guess is the union’s not going to touch this just based on the public backlash.”

Is there precedent for a case like this?

DD: “I'm not aware of a decided case off the top of my head. There was a story last year about a guy at Big and Tall store in London, Ontario being fired for making offensive comments about Amanda Todd. Someone tracked him down to that store and reported him to the employer. But that case wasn't litigated as far as I know.

“There are cases where employees were arrested for off-duty conduct and the employee's employer gets out in media stories: Kelly v. Linamar is the best known.”

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