Just Cause Termination of NICU Nurse after D.C. Rally

Kristen Nagle fired after off-duty conduct

In recent weeks we have seen a wave of terminations resulting from employees’ conduct outside of the workplace, particularly in relation to conduct that runs counter to public health directives and government lockdown orders.

Most recently, a neonatal intensive care nurse, Kristen Nagle, was dismissed with cause after speaking at an anti-lockdown rally in Washington, D.C. in January. The rally was organized by an organization that has been vocal about alleged “fraud” within hospitals relating to the COVID-19 crisis.

Nagle criticized public health measures such as wearing masks, lockdown orders and other COVID-19 directives. The nurse, who was employed with the London Health Sciences Centre (“LHSC) for approximately 14 years, had been on a paid suspension since November 2019 after attending a similar rally in London, Ontario. Shortly after the November incident, LHSC commenced an investigation into her conduct on the basis that her actions were “not aligned” with the hospital’s values.

Although the pandemic has raised a host of novel issues, the issue of whether an employer can terminate an employee for off-duty conduct is far from a novel legal issue. With the rise of social media and the advent of cell-phone cameras in recent years, off-duty misconduct has become an increasingly prevalent issue for both employers and employees.

With Cause Termination vs. Without Cause Termination

When an employee is terminated without cause in Ontario, they are being terminated for reasons other than significant workplace misconduct. In a without cause termination, it is completely legal for an employer to terminate an employee for any reason as long as the reason for the termination is not discriminatory. This can include restructuring, cost cutting, realignment, or poor work performance.

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Can the Middle Finger Get You Fired for Cause?

When an employee is terminated for severe workplace misconduct this is known as a with cause or a just cause termination. This means that the misconduct was so serious that the employment relationship can not be repaired. This type of termination is considered the “capital punishment” of employment law as an employer is not required to provide working notice or severance pay. The dismissed employee may also be ineligible to collect employment insurance benefits and will likely experience difficulty finding other employment.

Generally, employers are rarely successful in establishing that they were justified in terminating an employer for cause. However, in certain are circumstances, it may be warranted.

Was Nagle’s Termination A Rightful Just Cause Termination?

An employee’s off-duty conduct can result in a termination for cause, but only if their actions impact the company they work for, or if the employee is representing the company when the misconduct occurs. Some factors the Court will consider are whether the conduct causes harm to the employer’s reputation, leads to a refusal or reluctance of other employees to work with the employee, the employee’s length of service, whether the employee has a disciplinary record, and whether the employee showed remorse for the conduct.

In this case, it is reasonably possible that the hospital will be able to prove that they had just cause to terminate Nagle. Nagle attended a rally in her capacity as a nurse and criticized the way hospitals have handled the COVID-19 crisis. Although Nagle may not have explicitly named LHSC, her stance can certainly be seen as an implicit attack on LHSC’s reputation and values.

It is also possible that LHSC will be able to demonstrate that her contrarian views, particularly her anti-mask views, led to reluctance amongst both patients and colleagues to work alongside her. In addition, it is significant that this was not the first time Nagle was disciplined for such conduct. LHSC will likely be able to argue that not only did they engage in progressive disciplinary measures, but also that Nagle did not show remorse for her actions.

Takeaway for Employees

Off-duty conduct may warrant a just cause termination so always remain conscious of the potential consequences of conduct outside of work. Nevertheless, a just cause termination is generally difficult to prove so if your employment has been terminated  “for cause” because of misconduct that occurred outside of the workplace, contact our firm. Your termination may not be legitimate, and you may be owed full severance pay.

Takeaway for Employers

All too often employers choose the wrong type of termination, which expose them to liability for costly wrongful dismissal claims. Contact our firm before terminating an employee as you may be putting yourself at risk to a claim if you fail to provide termination pay when it was warranted.