WHEN, IF EVER, MAY AN EMPLOYER TERMINATE FOR CAUSE THE EMPLOYMENT OF A PERSON WITH BODY ART?

 

In Canada, Master-servant law is clear. An employer can terminate the employment of any employee at any time for any reason or no reason. The right of an employer to terminate without cause is tempered by human rights legislation and , where applicable, the presence of a collective agreement.

In a non-unionized context when an employer terminates the employment of any employee without cause the employer has a legal obligation to pay the employee reasonable notice. How notice is calculated can become calculated depending on the specific provisions of the underlying contract, although there are certain guidelines that courts tend to follow.

An employer also has the right to fire an employee for cause. When this is done, the employer has no obligation to pay notice to the employee whose contract has been terminated for cause. As more and more young people enter the workforce, employers can expect to come front and centre with the management of body art in the workplace.  There is a wide degree of attitudes toward body art. One study of college student found that young people tend to view body art as normative.

In the coming years, employers can expect to be hiring more and more people who sport body art of all types. In this article WINN explores the issue of when, if ever, an employer can use the content of a person’s body art as cause to terminate their employment contract?

Though this article does not provide an exhaustive list of circumstances in which an employer may be justified in taking such steps.  The contents of this article should not be viewed as a substitute to obtain specific legal advice on the subject.

Public Policy Grounds:   An employer may be justified in terminating an employee contract for cause in circumstances in which the content of the body art (tattoo) is offensive to public policy.  This could occur when the content of the tattoo is racist, sexist or offends some other aspect of human rights legislation.  Cause can likely be established in circumstances in which the employer specifically directs to the employee to remove the offensive language, or images but the employee refuses to do so. Cause could also be justified when an employee with offensive language in a tattoo uses the employers equipment to reproduce and or distribute that offensive language in the workplace or to third parties.

Criminal Code Grounds: An employer may also be justified in terminating an employee’s contract when that employer becomes aware that the content of the body art offends one or more provisions of the Criminal Code of Canada. An employer may be justified in terminating the employment of a person with body art for cause where the content of the tattoo is likely to come within the meaning of “child pornography”.  An employer may also be justified in terminating for cause if the content of the tattoo incites the commission of a criminal offence.

Admission: When the content of the tattoo is such that it amounts to an admission by the employee of wrong doing against the employer and such wrong doing can be independently verified, an employer may be justified in firing the employee for cause. For example, where the tattoo amount to the commission against the employer of fraud, and the employer can independently establish the commission of the fraud, then termination for cause may be justified.

There are plenty more situations and fact-specific circumstances in which an employer may be justified in terminating the employment of an employee. Though, a collective agreement tempers an employers right to terminate, every collective agreement in Ontario and perhaps in Canada acknowledges what is typically called management rights.  At all times, management has the right to terminate an employee for cause, except in most cases a probationary employee even in the context of a unionized workforce.

Though a union may grieve the termination of an employee on the basis of cause, many union representatives involved in the arbitration process are smart enough to know when not to bring forward a grievance. It is difficult to think of a union representative who would want to grieve an employers decision to terminate the employment of a person whose tattoo is clearly sexist, racist, or anti-semitic. That is particularly true because section 54 of the Ontario Labour Relations Act specifically prevents a collective agreement from being discriminatory.

While the contents of employee sported tattoos may be fertile ground for the discovery of content to support a decision to terminate or cause, an employee’s body is sacrosanct. As such, an employer cannot force an employee to display such content that is not already publicly displayed. An employer’s inability to force the employee to display the content is circumscribed even in circumstances in which the employer receives reliable information about that content. A person has a right to personal privacy and an employer, even with legitimate interest may not be able to invade that right without some form of judicial intervention. Employers should thread carefully in this area.