Heckling the Home Team: Off-Duty Conduct and Dismissal for Cause

BY NITIN PARDAL, LAWYER, WISE LAW OFFICE

Can you be fired for booing the home team?  As this Toronto Star article points out, it might not be out of the question, at least in New York City.

While attending a New York Knicks game at Madison Square Garden with his supervisor and two clients, Anthony Rotondi yelled out, "Carmello, you stink!" [referring to Knicks' player Carmello Anthony].

The seats, owned by Mr. Rotondi's employer, ING Financial Services, were situated four rows behind the Knicks' bench. 

Mr. Rotondi's remark led to:  

• his ejection from the arena;
• his arrest and charges for "tampering with a sports contest and criminal trespass"; and
• the dismissal of his employment of 12 years with ING Financial Services. 

If he were employed in Ontario, Mr. Rotondi would arguably have a cause of action against his former employee for wrongful dismissal.  In its defence, ING Financial Services would likely argue that Mr. Rotondi's off-duty conduct justified his dismissal. 

This begs the question:  What kind of off-duty conduct could justify an Ontario employee's dismissal for cause?

Dismissal for Off-Duty Conduct

As the Newfoundland Superior Court noted in a 1992 case, Strowbridge v. Re/Max United Inc., in order to establish that an employee's off-duty conduct constitutes cause for dismissal, an employer must show that there was a nexus or connection between the employee's off-duty conduct and the employment relationship and that the conduct:

• detrimentally affected the employer's reputation;
• caused the employee to be unable to discharge his/her employment obligations;
• caused other employees to refuse to work with the employee; or
• adversely affect the employer's ability to direct or efficiently mange the production process.

Here are some examples of cases where an employee's off-duty conduct did justify dismissal for cause:

• In Hyland v. Royal Alexandria Hospital, a 2000 decision from the Court of Queen's Bench of Alberta, a Internal Auditor participated in an GST-avoidance scheme when purchasing a private vehicle.  The court upheld his termination for cause;
• In Whitehouse v. RBC Dominion Securities Inc., a 2006 decision from the Court of Queen's Bench of Alberta, a senior employee brought prostitutes to the employer's premises during off business hours.  His dismissal for cause was upheld; and
• In Marshall v. Pacific Coast Savings Credit Union, a 1995 decision from the British Columbia Supreme Court, an employee failed to pay off a credit card debt after arranging a loan from the defendant employer for that purpose. This led to a lack of confidence in the employee's integrity and according to the Court, justified his dismissal for cause.

The Case at Hand

Returning to Mr. Rotondi and his dismissal from ING Financial Services, can it be argued that his conduct at Madison Square Garden, was in fact not "off-duty?" Consider the fact that he was attending the game with his supervisor and clients, and that the seats for the game were owned by his employer.  Clearly his behaviour in this context did reflect on his employer.

Its a question of degree - it would be far more difficult to establish that the mere heckling of a professional athlete during the course of a sports event "detrimentally affected the employer's reputation" unless the heckling behaviour was seriously out of the ordinary, extreme or "over-the-top."

As for Carmello Anthony, the player at whom Mr. Rotondi's remarks were directed, he ended up with a game high of 34 points and led his team to a 89-85 win against the Detroit Pistons. 

Perhaps Mr. Rotondi's comments served as the catalyst for the Knicks win.

- Nitin Pardal, Toronto

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