Update: those guys got fired from their jobs and got lifetime bans from Toronto FC, Raptors, and Maple Leaf games.
deathtokoalas
that would never hold up in a court. employment contracts refer to conditions inside the workplace. this is textbook wrongful dismissal - unless somebody files charges. if he challenges this, he'll win a large payout. and he should. your boss is neither judge, nor jury, nor executioner.
A Hermit
+deathtokoalas You're awfully naive I'm afrad. This kind of vulgar, abusive behaviour is actually grounds for firing. He could try and fight it I suppose, but depending on his actual position he's certainly not guaranteed a win. (Does he supervise others? Does that include women? Does he deal with customers? What effect does his notoriety have on his ability to work with co-workers, subordinates, customers?)
His employer has a code of conduct which includes not harassing women. That he's been caught on camera doing exactly that kind of leaves him without much of a case.
http://www.cbc.ca/news/business/firing-of-shawn-simoes-for-off-duty-fhritp-video-reflects-employment-trend-1.3071919
http://www.ctvnews.ca/canada/fhritp-outbursts-can-easily-cost-your-job-lawyer-1.2371690
There's a good discussion of the legal issues around his firing here:
http://www.thestar.com/news/canada/2015/05/13/does-hydro-one-have-the-right-to-fire-tfc-fan-shawn-simoes.html
deathtokoalas
+A Hermit your employer can set conditions as to how you must behave at work, but they are your employer and not your owner. a good intuitive comparison is to drunkeness. you can get fired for coming to work drunk. you can't get fired for being drunk on the weekend - unless you get charged for something, like a dui.
basically, nothing you're talking about is at all legally relevant.
droptop10001
I bet these guys will take legal actions
deathtokoalas
+droptop10001 a factor in the case is likely to be that hydro one doesn't have any competitors.
i'd lean heavily towards the idea that the only way to successfully make the argument for dismissal in a court is if it involves a conviction. just about anything else reduces to the boss morally intervening in your private affairs, which is a definite no-no. even an acquittal just says "not guilty of the accusations". the legal analysts in the papers are focusing on the idea of financial harm, but i think it's only half the argument. at the end of the day, your boss does not have the right to convict you of a crime and punish you for it. but, it can certainly react to a judicial decision.
there's really no way to argue financial harm, here. electricity is largely inelastic in demand and consumers don't have any other option to turn to.
i'm quite certain he'd win this case. these lawyers seem to be misunderstanding the situation (hydro one is not private sector) and then applying the wrong test.
Ella Jones
+droptop10001 They don't have a legal leg to stand on.
deathtokoalas
+Ella Jones rather, it's the opposite. the talking heads in media have been quick to point out that they're talking in abstract, and this kind of firing has never withstood a court challenge.
Ella Jones
+deathtokoalas That's strange, a women I worked with got fired, soooooo.
deathtokoalas
+Ella Jones i don't think anybody is arguing that they'll get their jobs back. it's a question of back pay and punitive damages.
Ella Jones
+deathtokoalas Write down the date and time, they will never get their jobs back and won't go to court.
deathtokoalas
+Ella Jones well, i don't expect them to get their jobs back - or to try. i don't know what the government actually gave them in terms of severance. court is not free, one needs to apply a cost-benefit analysis....
i'm just pointing out that, if they did go, they would almost certainly be awarded about a year's pay on top of hefty punitive damages.
A Hermit
+deathtokoalas Well that last link I gave you was was to three labour/employment lawyers discussing the issue. I'll take their opinions over some anonymous Youtube commenter's any day.
And what they're saying is that you can be fired for behaviour which might reflect badly on your employer even if legal charges aren't involved. That can't be for something like expressing a political opinion but if it's behaviour which would be in violation of your terms of employment (like sexually harassing someone) you are unlikely to have any success fighting the dismissal.
And I don't think that's unreasonable. If an employee is in the habit of sexually harassing women who are complete strangers to him in public on his time off how can you trust him to behave himself at the office? The guy's a lawsuit waiting to happen. No employer should be expected to take that chance.
deathtokoalas
+A Hermit
a few things.
i was maybe a little sloppy in what i was saying. in ontario, nobody gets reinstated under much of any circumstance. imagine getting fired and then having the court send you back to work - that's not a healthy work environment, and basically can't be. and the court can't be firing bosses, either.
when i said "you can't get fired for this", what i meant to say was "you can't get fired for this without your boss being liable for paying financial consequences.". the argument is over punitive damages for wrongful dismissal, not reinstatement. that damage is done and can't be reversed.
one of the talking heads acknowledges he is speaking abstractly, not basing his analysis on legal precedent. further, the basic idea is that people can be fired for making a firm look poorly compared to their competitors - which doesn't apply here, because this company is not private sector. you're misreading your source, which is misunderstanding the situation in the first place.
now, i agree with what you're saying about harassment in principal. the question is who gets to decide on this point. again: your boss is not the legal system. he can't go around accusing you of harassment without a conviction, then firing you for it. in addition to wrongful dismissal, this guy has defamation in his list of legal remedies.
in order for what you're saying to make sense. the only legally effective argument is a conviction. just about anything else is going to be the boss taking the law into his own hands, which he will be liable for in terms of punitive damages - because he can't and shouldn't be able to do that.
once a conviction is established, what you're saying becomes reasonable. and i would agree with putting somebody on leave while they're being tried. but, your boss can't just charge, try, sentence and execute you in the kangaroo court of his office - and if he tries then that is wrongful dismissal.
in this case? i think the behaviour falls short of harassment. the bottom line is that your boss can tell you not to be a misogynist at work, and enforce it, but he can't tell you not to be a misogynist at home. we don't have thought crimes in our legal code. we're not placed into permanent categories of thought criminals like "racist" and "sexist" by the law. rather, we're forced to deal with the consequences of specific actions that occur under specific circumstances. there's no reason to think he couldn't behave more appropriately at work, or that he didn't behave more appropriately at work.
again: the alcohol comparison is the correct one, here.
so long as he doesn't act like that at work, and no charges are filed outside of work, he is likely to win a large settlement. and despite thinking that we need to get to the root cause of this, i think that's correct.
i mean, today it's getting fired for saying stupid things to a reporter. tomorrow, it's getting fired for organizing a union. and, that's why he can't lose the settlement.
A Hermit
+deathtokoalas There's a big difference between organizing a union and sexually harassing women. I don't think the slippery slope you're proposing here is actually much of a concern.
deathtokoalas
+A Hermit see, the crux of the matter is that this accusation of harassment is not proven anywhere. i'm not presenting a slippery slope like you're suggesting. this doesn't come down to a conviction, or even an arraignment. it's just some random accusation. it's ultimately no different than firing somebody for using contraception, or being gay. i know that nobody wants to think of it like that, but there's really no objective standard of behaviour being applied here. that is why it's a problem.
it's easy to say there's a difference. but, until the issue is proven in a court? there really isn't.
so, what's the right answer then?
well, if you're going to fire him you have to give him sufficient notice if you want to make sure he can't sue you. but i think he's a network admin. that's a bad scene, for obvious reasons. and he can still sue you for punitive damages (although i think his chances of convincing a judge decrease if he gets notice).
so, to get out of all that, you give him a year's severance, and then some. i know - rewarding bad behaviour.
i think maybe the better option is to give him the option between getting fired (with sufficient severance) and going to counselling. ultimately, the goal here should not be to punish the guy. i mean, if he pushes it far enough, it's likely to backfire, yeah, but that's not really the point i'm trying to get across - punishment isn't an answer, and doesn't correct behaviour. ultimately, what you want is for him to understand he's a douchebag and knock it off. counselling is the right means to that end.
then, if it doesn't work out, there's a stronger grounds for termination without the need for a payout.
Boaz Ezekial
+deathtokoalas why you hate koalas so much?
deathtokoalas
+Boaz Ezekial it's their nefarious cuteness. they must be destroyed. and they don't deserve due process - too evil to the core.
A Hermit
+deathtokoalas Not proven? It's right there in the video above...
deathtokoalas
+A Hermit you're not much into due process, are you? just shoot 'em all and let god sort them out? you sound like a self-righteous, moral majority type reagan republican.
if the accusation is harassment, the evidence in the video is very ambiguous. i think we can agree it was a stupid thing to say. but, the question of whether it is harassment or not requires a trial to arrive at.
based on the video? i would argue that it is not harassment. which just demonstrates that your value system is arbitrary, and you can't be going around punishing people for not adhering to your subjective code of morality.
A Hermit
I'm all for due process (and Hydro One reports that they are engaging in a process to terminate this joker's employment, so all that speculation you're engaging in about notice and severance is presumably being worked out right now.) But the idea that we can't reach conclusions without going to trial is just absurd.
Look, the guy did what he did on video in front of the whole world. He's part of a group of men who acknowledge participating in the harassment of that reporter, and admit planning to do it again and he not only defends that harassment (he knows that she's been repeatedly subjected to this demeaning threatening phrase being shouted at her) he decides to pile on more by telling her she's lucky not to get a dildo shoved in her ear.
You shouldn't need a trial to figure out that what you just saw is harassment. No one should have to put up with that kind of verbal abuse on the job. participating in that abuse is a violation of his employment contract and his employer has every right to can him.
Oh, and I'm a sex-positive feminist social-democrat, a secular humanist and a fan of the labour movement so you fail at making assumptions about people too.
deathtokoalas
+A Hermit "But the idea that we can't reach conclusions without going to trial is just absurd."
so, who gets to be dictator, then? you?
i've just disagreed with you. how do we figure this out without a trial, besides through the force of your authority?
harassment in canada is not about discomfort, it's about fear. the law does not lean towards some dictatorial concept of "safe spaces" and let one group of people demand that the other uphold their arbitrary moral convictions under the weight of some kind of self-righteous superiority, it leans toward freedom of expression regardless of consequence. from a legal perspective, it's blatantly obvious that the guy was not attempting to frighten the reporter, and it consequently would not result in a harassment conviction. it's just somebody being a moron.
if you claim otherwise, you have an argument that you need to make. and you need to convince people of the point.
until that evidence is analyzed and weighed in an official capacity, his employer remains liable for it's actions in firing him.
"i don't think your joke is funny" != "sexual harassment". even if the joke is obviously unfunny.
A Hermit
+deathtokoalas But if the "joke' is obviously sexual insulting and demeaning, directed at an individual because of their gender, repeated even after it's clear the attention is unwanted and added to with more sexual comments/innuendo and possibly threatening language...that's undoubtedly harassment. And that's exactly what happened here.
deathtokoalas
+A Hermit regarding the legal definition of harassment (which is different than the workplace definition of it - that is, people are held to a higher standard at work than outside it), the important part is the last point - repeated threatening behaviour, after being asked to stop. the reporter indicates that she deals with this repeatedly, but you can't hold an individual to account for a group's behaviour (and despite "soccer hooligans" not being an identifiable group, it's clear what i mean when i say that). his defence is actually relevant: it wasn't intended specifically at her, and wasn't meant to be threatening. the video would actually likely be used as evidence in his favour, on that point.
now, if you consider the possibility of this specific individual being filmed repeatedly? well, that's closer to the definition. i mean, if he's stalking her, than that's intimidation. but it's a different issue than what is at hand.
i'm not clear on the actual process being used to deal with this. the initial reports made it seem like he'd been turfed and asked to not let the door hit him on the ass, kind of thing. on reflection, i suppose that was never likely: i really have no doubt that hydro one is aware of the legalities surrounding a firing of this nature.
the point is that this isn't open and shut. it's far from obvious; it's actually extremely subtle, and the legal arguments are actually very delicate, because it's in a grey area of socially unacceptable but (in my estimation) legally acceptable behaviour. and, if the company wants to avoid a payout, it needs to be very careful in how it deals with this.
again: i'd prefer counselling as the best option. the only thing that's clear to me from the video is that these guys need some therapy.
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deathtokoalas
+Mr Magoo you have clearly been brainwashed by the nefarious koalas. for all i know, they may have advanced in their pursuit of global domination to the point that they can use the internet; you may, in fact, be a koala. if that is true, god help us all.
no civilized society can tolerate these creatures and their disgusting cuteness. they must be annihilated, before it is too late.
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deathtokoalas
+Mr Magoo see, here's the thing: i'm an anti-capitalist, alphabetical egalitarian and general grammar anti-authoritarian. i don't believe in hierarchy, or in centralized grammar authorities. the abolition of punctuation is the redemption of sanity. if we lack the freedom to order our own thoughts as we choose, we lack any freedom at all.
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deathtokoalas
+Mr Magoo let me state to all who can hear: behold the manipulative nature of the koala. but, you do not fool me! no! i am on to your koala tricks, your evil plans, your nefarious aims. your cuteness disgusts me. how long can we tolerate this?
people, open your eyes! the koalas are taking over! before we know it, there will be a eucalyptus tree to replace every maple. eucalyptol to replace the maple syrup. imagine this: drunken koalas everywhere, terraforming the planet for their disgusting habits.
and, now they can type! i fear it may be too late to save us. but heed my warnings: we must declare a war on koalas. not tomorrow, but immediately! the future depends on our action, or our inaction, against this grave threat to our national security.
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A Hermit
+1jomojo I think it's more like sexually harassing someone and getting fired...
No wait, it's not "like" that, it actually IS that...
deathtokoalas
+A Hermit again: these accusations are defamatory. this has been explained to you. this is rather clearly not sexual harassment under canadian law; rather, your continued insistence on defaming his character is harassment.
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deathtokoalas
+Hem3fiction it doesn't matter that she went to talk to them. harassment is not about offending people, it's about intimidating them. as offensive as these idiots are, they're neither succeeding in nor attempting to scare anybody.
one way to understand this is to research the difference between the "offense principle" (which is the conservative approach to speech, sometimes pushed by a peculiar brand of right-wing foucaldian quasi-fascists) and the "harm principle" (which is the liberal approach to speech).
this is explained a little here:
plato.stanford.edu/entries/freedom-speech/
because workplaces are inherently conservative institutions, they tend to lean towards the right-wing "offense principle". this defines ideas like "safe spaces".
however, in canada, we have a legal history of liberalism, and our law is entirely focused on the "harm principle".
what that means is that the legal argument is not "you offended me", but rather "you pose a threat to harm me.".
if you don't like that, you can always move to a more conservative society.
A Hermit
+deathtokoalas And you think there's no harm in sexually harassing someone?
That's interesting...
deathtokoalas
+A Hermit that's an interesting choice of words.
A Hermit
+deathtokoalas Well you're making a distinction between "offense" and "harm". you seem to think there is no harm in the kind of sexual harassment on display here. (and it is plainly sexual harassment by any reasonable definition.)
http://www.ohrc.on.ca/en/internal-human-rights-policy-working-draft/appendix-definitions
"Harassment: means a course of comments or actions that are known, or ought reasonably to be known, to be unwelcome. It can involve words or actions that are known or should be known to be offensive, embarrassing, humiliating, demeaning or unwelcome..."
"Sexual harassment: A course of comment or conduct based on an individual’s sex or gender that is known or ought reasonably to be known to be unwelcome...
Forms of sexual and gender-based harassment could include:
Suggestive or offensive remarks or innuendoes about members of a specific gender
Propositions of physical intimacy
Gender-related verbal abuse, threats or taunting
Rough and vulgar humour or language related to gender"
I think it's reasonable to take repeatedly having "fuck her in the pussy" shouted at her and being told she's lucky not get a dildo shoved in her her fit any number of those criteria.
But you see no harm in any of that?
deathtokoalas
+A Hermit you're accidentally making my point. the ohrc is not a body that creates or enforces law, it is a body that interprets whether laws are followed. it cannot charge you with criminal harassment, it can only award damages in a situation where the human rights code is violated under the specific circumstance that the claim refers to a body or individual in authority over the claimant.
criminal law of this nature is a federal responsibility, not a provincial responsibility. again: the relationship between our provinces and central government is the opposite of what exists in the united states, because our constitution was largely built in order to prevent a civil war, which our framers blamed on the american concept of "states rights". the province does not have a criminal code.
the appropriate federal criminal law to cite is the following:
Criminal harassment
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited conduct
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
that's harassment in canada. it is neither more than this, nor is it less than this.
before you can claim harassment, you have to demonstrate that the behaviour "causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.". if that's not true, it's not harassment in canada.
do we know this is true? i claim it isn't. but, the point is that it's not my choice or your choice. note the following, which is the civil rights issue i'm attempting to get across to you:
http://www.ohrc.on.ca/en/code_grounds/record_of_offences
as mentioned, the legal basis of our law is mills. canada is the only part of the british empire where the liberals got to actually build the country, and the law is consequently erected on somewhat of an extreme basis, in terms of liberal ideology. speech issues in canada require a very high bar.
just to clarify the point: the ohrc enforces the human rights code, which is a law that primarily puts restrictions on the ability of government bodies to behave in a discriminatory fashion. it's not a criminal law. it's mostly in place to prevent things like not handing out driver's licenses to women, or not hiring somebody because they're muslim. it's primarily a civil litigation body, and it's remedies are largely restricted to forcing payouts for damages. it can't send you to jail or force you to do community service or anything like that.
the reporter here can't just take this random guy on the street to the human rights commission. if it was her boss? sure. but, in this circumstance, it's not the right to law to cite.
there are some limited private sector circumstances regarding things like housing and employment opportunities where the human rights code can intervene on the basis of something systemic; authority or hierarchy type circumstances. but we don't have a general "social human rights code" that forces random people to not discriminate against each other in random on-the-street circumstances.
the code is explicit in it's application, but i would expect a concept of "analogous grounds" around the idea of "not using authority to oppress" to apply.
In Ontario, the Code prohibits all forms of discrimination based on sex – and this includes sexual harassment.
The Code applies to five “social" areas:
services, goods and facilities (including education)
housing
contracts
employment
membership in vocational associations such as trade unions.
this is hierarchical and authoritarian type stuff. not random idiots on the street.
you can kind of think of it like the same way that people often define racism as something that is only hierarchical - that is, comments and statements aren't racism, but profiling or racial hiring standards are.
the tl;dr there (after a few edits designed to clarify a few specific points....i took three years of law, but i'm not a lawyer, and the law is famously byzantine, so i'm going to sometimes get broad ideas across correctly while being a little off on specific details) is the following:
1) the ohcr definition of sexual harassment is specific to situations of authority that do not apply here. it has to be some kind of abuse of power.
2) the ohcr does not have the power to make criminal charges and must defer to federal law.
3) the federal definition of harassment necessitates the creation of fear.
i'd argue that all of this leads to the conduct in the video neither being legal nor civil harassment.
but it's apparent - from the existence of this debate - that a trial is necessary to get to an answer.
A Hermit
+deathtokoalas Very impressive, but the question here isn't whether the reporter can take the guy to court, it's whether his employer has grounds to fire him. Since his behaviour in so many ways fits the definition of harassment and his contract forbids harassment I'd say they clearly have cause. Behaviour doesn't have to rise to the level of criminality to be cause for firing.
Any honest observer shouldn't need a trial to see that he was participating in a continuing effort to demean and harass that reporter.
And whether or not that rises to the level of criminal harassment I'm amazed that anyone could look at that kind of behaviour and say that it does no harm.
deathtokoalas
+A Hermit but the question of whether he can be fired (without a payout.....your boss doesn't actually need a reason to fire you, it just might have to pay damages....) is largely dependent on whether the behaviour fits a trial definition of harassment. when a court asks the question "is this harassment?", that's what it looks at.
as mentioned, i think the situation really had nothing to do with shauna hunt. i think it had to do with trying to get on tv, and be the centre of internet attention. she just happened to be the reporter there. if it was a different reporter, it wouldn't have made any difference. this neither has anything to do with an abuse of power, nor is it really an attempt to "demean" - although being "demeaning" is not any kind of legal argument. "moooooommmmmm. he's being mean!". it's just not going to fly. and, i can't see how you - as a claimed "honest observer" - can't see that my continued counter-arguments don't make the necessity of a trial clear.
there was a similar case the other day with a comedian. now, to begin with, i think that is a situation that was legally criminal harassment - it was something like "i want to fuck you", clearly intended to intimidate and with the end result of the comedian leaving the stage, partially out of fear for her safety. those are the ingredients for a criminal harassment suit. so, this is a case of (i'd argue) far worse behaviour. the next day, she got a call from his boss indicating he's been put on paid leave while an internal investigation concludes. the employee there would have no argument for wrongful dismissal, if it happens.
icbones
+A Hermit It's not harassment. He was asked an opinion on what some other dude did.
deathtokoalas
+icbones wait. is this issue surrounding the guy in the red shirt, or the guy that actually took the mic?
A Hermit
+deathtokoalas It's about both of them, and the rest of the nitwits who were egging on the first guy and planning to harass the reporter again.
By the way I think it's interesting that after accusing me of being a "self righteous moral majority type" you're the one hiding behind rigid legalism to try and deny the obvious...
A Hermit
+icbones He's participating with a group of people who are harassing, encouraging the harassment and planning more harassment.
And he wasn't asked for his opinion; she was talking to someone else when he jumped in to tell her how fucking hilarious it would be to see someone shove a vibrator in her ear...
deathtokoalas
+A Hermit "aiding and abetting being mean".