'The decision is discriminatory,' says lawyer for B.C. education assistant fired for racy online content

An education assistant (EA) at Terry Fox Secondary in Port Coquitlam, B.C., has been fired by the school district for posting racy content online, including on OnlyFans, a subscription website known for custom pornography.

Kristin MacDonald, 35, has posted titillating photos and videos for about a year, under the name Ava James.

School District 43 ordered her to shut down her adult content on social media, including on OnlyFans, in April or risk being fired.

MacDonald did not comply, and the district terminated her employment on June 16.

In a termination letter, the district called MacDonald's conduct "egregious" and listed six reasons for her firing.

Among them is allegedly posting material on public social media accounts that "involves the sexualization of the school environment." The letter further stated she capitalized on the link between being a school employee and an adult performer via her OnlyFans subscription offerings.

In the letter, School District 43 stated MacDonald's termination was "effective immediately" and with "just cause."

MacDonald is fighting her dismissal and has hired Lia Moody, an employment lawyer and a managing partner at Samfiru Tumarkin in Vancouver.

In an interview with On The Coast guest host Belle Puri, Moody spoke about her reaction to MacDonald's firing.

Moody also made a case for the dismissal being discriminatory, and said she will be filing a complaint with the B.C. Human Rights Tribunal.     

This interview has been edited for length and clarity.

What was your first reaction when you heard that Kristin MacDonald had been fired by the school district?

I think it was probably on the same level as Kristin — not terribly surprised given the tenor and tone of the original cease and desist letter, but extreme disappointment. I'm just disappointed that this is where we're at and … that there was no constructive conversation that they could have with her, and that they saw that the only remedy was to terminate her.

But if an employer has a code of conduct and an employee violates that conduct, isn't it fair for them to be let go?

Absolutely.

No matter what somebody does or doesn't do, an employer is fully within their legal rights to terminate, as long as [the employee] is provided with appropriate severance.

In Kristin MacDonald's case, we've got a situation of somebody who's unionized and so all of the machinations of her termination and her employment and how this fits into all of that is going to be subject to the terms of the collective bargaining agreement and the various codes of conduct.

But you're absolutely right: generally speaking, if there is a breach of a code of conduct that so irreparably damages the trust inherent in an employment relationship, then an employer can actually terminate somebody's employment without having to provide them with severance at all. And that's what we call, in a non-unionized context, a termination for cause.

School worker dismissed for OnlyFans account says it shouldn't be a firing offence

1 year ago

Duration 0:51

Kristin MacDonald says OnlyFans is part of the evolving face of sex work and puts women like herself more in control.

Now the termination letter from the Coquitlam school district, it listed six reasons for firing her, including allegedly posting material on public social media accounts that involves the sexualization of the school environment. As well, it said that she linked her education assistance and adult performance work through media interviews. So are those appropriate grounds for termination?

Again, outside of a unionized context, you can be terminated for any reason.

So whether or not a reason is good and sufficient isn't, at least, what I'm necessarily looking at. I think the district was within their rights to terminate somebody as long as it is in compliance with the collective bargaining agreement, which I understand Miss MacDonald's union is actively grieving.

But the question for me, and the reason why Miss MacDonald has retained me, is because I think that the decision is discriminatory. So regardless of whether or not the reasons are good or grounded or sufficient or legal, if they're discriminatory — or even if they carry the scent of discriminatory motivation — I think that that can be highly problematic.

Discriminatory how? Why?

Well, I think that occupational discrimination is fairly ubiquitous when it comes to sex work, or work of this kind of nature. The vast majority of this sort of work is performed by women, and so I think that there's a real question here as to whether or not somebody's sex has been discriminated against when they are fired for taking on a job that they had to do.

The defence that I keep hearing on behalf of the school district — and it's not an unfair defence — is that educators need to be role models. They need to set certain standards, they need to behave in a particular way both on and off duty. And I understand that but I think that there's a real question that we have to ask ourselves as a society, and certainly as a legal system, as to what we consider to be a role model. I personally think that somebody like Kristin, who is looking at the situation and saying, 'I'm not paid enough as an EA, I'm going to do what I need to do to make ends meet, to provide for my daughter,' is a role model, particularly for young women.

Now the letter also suggests that Miss MacDonald sexualized the school environment and used, quote, sexy schoolgirl imagery. How substantial are these claims?

I don't think that there's any connection on Miss MacDonald's OnlyFans account to the fact that she is an educational assistant. And I don't believe that she's bound by those specific terms, as she's not technically classified as an educator in B.C. as an EA. I think that that's just a spin on the same sort of [role model] claim. The whole response to it has been a bit outdated and outmoded, in my view, and the connection to the schoolgirl outfit is, I think, a little silly if I'm being honest.     

She used an alias online. Is that not enough separation from her work in the school district?

I would think so, absolutely. There's absolutely no connection between Miss MacDonald's OnlyFans account and her employment.

Miss MacDonald is pursuing a grievance through her union, the Canadian Union of Public Employees, over her termination. What does that process look like?

It will likely be heard through an adjudicative type process, hopefully resolved in a favourable result for Miss MacDonald. But the tribunal process, which is what I'm involved in, will mean that I'm going to be taking a complaint on Miss MacDonald's behalf, for sex discrimination, and filing that with the British Columbia Human Rights Tribunal, which will be a public document.