It began, as all meandering and foolish endeavours tend to do, on Twitter.
Or is it X? The law says X, custom says Twitter, Elon Musk says X. Let’s go with Twitter on the balance, then.
In any case, I was on Twitter, and I saw a tweet (which is now tragically lost to the mists of time) from an employee in hot water at their work. They had responded to a recruiting email they had received, only for their employer to reveal that this email had been sent on their behalf so as to test the loyalty of some of their employees. Their positive response to the recruiting email had made them liable to discipline, and possibly dismissal. They wondered if they had legal recourse in this instance, or if they could be dismissed out of cause.
What they were asking, essentially, was if situations brought about intentionally by an employer as a form of entrapment could provide cause for discipline or dismissal.
Unsurprisingly, this particular example comes from America, land of the ‘right to work’ law and consequently the ‘right to be fired rather easily.’ The question, however, remains relevant in Ontario, the jurisdiction in which we will examine the legality of this scenario.
If you were wondering, by the way, I harbour doubts about whether accepting feelers from a recruiter is sufficient grounds for dismissal in the first place. In the common law of employment, an employee may be justly dismissed for having a conflict of interest in their workplace, which would likely be the pretext in this instance. Employees owe their employers a general duty of “good faith and fidelity,” and one may indeed argue that an employee, by engaging with a recruiting email, is breaching this sacred bond of economic matrimony.[1] In practice, however, courts have tended to only rule against employees for having a conflict of interest in these cases where an employee begins working on behalf of a competitor prior to leaving their original job, where their wandering eye significantly impinges on their job performance, or where an employee is deceptive over a prolonged period about their intention to leave. Merely responding to a recruiting email constitutes none of these conditions, at least through my red-tinted glasses, and so even responding to a good faith recruiting email would not constitute grounds for dismissal.
But let’s assume for a moment I’m wrong about that (my professors are exceedingly good at this, by the by). If responding positively to a recruiting email does in fact a conflict of interest such as to provide grounds for dismissal, then can employers entrap employees by sending them recruiting emails as loyalty tests to provide cause for dismissal for ‘disloyal’ employees?
Well, to begin with, employers and employees are implicitly taken to operate under a mutual obligation of trust and confidence. This is often applied to the respective parties operating as legitimate actors within their respective realms. In Mahmud v Bank of Credit and Commerce International, for example, an employee received damages for working for what turned out to be a CIA front for funnelling money to terrorists during the Cold War, and not a legitimate bank (don’t ask if legitimate banks support violence in the Middle East nowadays if you know what’s good for you). But this relationship, being mutual, also obligates the two parties to act trusting towards each other. An employer scheming to undermine their employee’s loyal standing by way of deception seems unlikely to fulfill this obligation of trust.
As far as I can tell, there are no Canadian cases that present a similar fact pattern to the one described on Twitter, and so the question of the legality of employer deception is still up in the air here. I suppose Galen Weston and the rest are simply too benevolent towards their employees for such cases to be brought before a court up here. In some other jurisdictions, however, similar cases have appeared.
In South Africa, the case of General Industries Workers Union of South Africa obo Mazamela & others / Rentech South Africa established that employers can use tactics of deception and entrapment in order to obtain evidence of serious misconduct, with the provision that no previously innocent employees can be fired on the sole basis of engaging in the trap laid. While this ruling allows for employers to practice entrapment, it only does so in the context of uncovering serious employee misconduct. Sending out a mass recruiting email to test employees’ loyalty cannot be understood as having anything to do with serious misconduct, and further engagement solely with the deceptive material cannot be the basis for dismissal. The powers worried about by our tweeter do not seem to exist.
But if we head south of the border, things get dicey. As the standard in American employment law is for employers to be able to dismiss employees at will without the need for a just cause, a paranoid employer is perfectly within their rights to distribute covert loyalty tests so as to rid themselves of perceived perfidious employees. The only possible exception is in the 11 States of the Union in which there exists an obligation, as there is in Canada, for good faith and fair dealing between employer and employee. In these states (which, bizarrely, include Alabama? George Wallace is rolling in his grave), an employee may have a case to bring against an employer who dismissed them on evidence acquired through the bad faith practice of entrapment.[2] It is still America, though, so with apologies to our Twitter friend, I have my doubts about their chances.
All this is to say that, in Ontario, it would in all likelihood be prohibited for an employer to practice deception and entrapment so as to provide cause for dismissal, based on the relationship of trust and confidence imposed by Canadian common law. There seems to be no basis in the law for a dismissal based on conduct that occurred solely within a deceived mindset, and, to deal with the specifics of the tweet, no basis for such banal disloyalty being cause for dismissal. I would doubt the legality of entrapment in employment law, therefore, pending a test case.
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