In recent days, there has been significant public conversation in the United States, Canada, and beyond surrounding the insurrectionist riot that occurred at the US Capitol on January 6, 2021.
As photographs, video, and audio of (and by) participants is circulated online and rioters identified, members of the public have demanded that organisations take action, including demanding that employers terminate the employment of insurrectionists and rioters who are so identified. Likewise, employers are receiving significant pressure to take disciplinary action against employees who are identified participants in anti-mask protests.
While the riot at the US Capitol and the COVID-19 pandemic are recent and unprecedented events, the increasingly widespread dissemination of photographs/videos on social media platforms (i.e. the viral video), in conjunction with a push for greater corporate social responsibility and accountability (i.e. cancel culture) over the past several years has resulted in many employers with operations in Canada having to reckon with their employees’ off-duty conduct. Although increased social pressure may encourage employers to take a “terminate now, ask questions later” approach to managing their workforces, employers are well advised to not to make a final decision as to whether to terminate their employees for behaving badly outside the workplace before asking and answering certain, critical, questions.
An individual’s conduct outside of working hours will not justify dismissal without notice unless that conduct amounts to a specific breach. Two critical questions to be asked are: whether an employee’s conduct interferes with and/or prejudices the employer’s business interests and operations; and whether the employee’s actions damage the employer’s reputation with the public. On this basis, bad publicity for an employer may form the basis of a termination for cause; Canadian courts have upheld terminations based on reputational harm, but in other instances, have found no sufficient cause for termination existed. Beyond publicity issues, an employee’s poor off duty conduct may render the employee to be unable to discharge their employment obligations properly, or be sufficiently related to their employment, which may also provide a basis on which to terminate their employment for cause.
Before terminating an employee for cause in relation to off duty conduct, employers are well advised to adopt these best practices:
- Investigate: Ensure that a proper investigation is made into the employee’s alleged conduct. Confirm that your employee is the individual who is subject to public criticism, and establish exactly what form of misconduct is alleged to have occurred. Provide the employee with an opportunity to explain their conduct.
- Assess the Impact: Consider whether the conduct directly impacts the employee’s role, or the workplace more generally. Determine if the employee may, as a result of their conduct, have difficulty working with other members of the workforce, or whether the conduct relates to and negatively affects some other aspect of the employer’s business.
- Consider Reputation: Determine whether the employee’s conduct will have an impact on the employer’s business and reputation. Establish whether a failure to discipline the employee for their conduct could translate in actual losses for the employer, and identify any evidence of business losses.
Ultimately, it is difficult for an employer to meet the threshold test established by a termination for cause. For this reason, any termination which relies on a “for cause” basis should be carried out carefully. Likewise, employers should be mindful that some Canadian provinces, like British Columbia, provide legislative protections against discrimination in employment based on political belief, which may be relied on by an employee in the context of a human rights complaint against the employer. Unlike some other jurisdictions, Ontario’s Human Rights Code does not include a ground for political belief or conviction, but instead contains the protected ground of “creed”. At the same time, not every belief, opinion, expression, practice or matter of conscience is a creed under the Ontario Code. To date, no tribunal or court has found a political opinion or belief to be a creed under Ontario’s Code. However, some decisions have left open the possibility that a comprehensive political or philosophical belief system may be equivalent to a creed under the Code. Persons with political beliefs that substantially intersect with creed beliefs may also receive protection under the Code, where creed is an element of their discriminatory treatment.
Even though employers cannot control the actions of their employees outside of working hours, they can proactively implement certain measures in the event that issues do arise relating to employee off-duty conduct arise, including:
- Employment Agreements: In the non-unionized context, an employment agreement containing a without cause termination provision can be an invaluable tool that provide employers with the option to terminate their employees on a without cause basis. The function of the termination clause is to limit the notice or pay in lieu of notice that an employee will receive upon termination without cause, which can alleviate the pressure on an employer to terminate an employee for cause (where they are not entitled to notice or pay in lieu of notice of termination).
- Appropriate Policies and Procedures: By having clear and reasonable workplace policies, and by regularly enforcing such policies, an employer can be well-prepared when an employee engages in off-duty misconduct. As one example, policies relating to employee social media use can proactively place employees on notice in terms of what type of content and conduct is considered inappropriate by your business.
- Record-keeping: When disciplining an employee for their off-duty conduct, an employer should be diligent in recording the incidents in question and its decision-making process.
Disciplining or terminating the employment of an employee for off-duty conduct can be a complex process. Miller Thomson’s Labour and Employment group is ready and able to assist your business with these issues, whether you require assistance with an ongoing situation or wish to protect your business against situations that may arise in the future.
 In the non-unionized context, an employee can be terminated on a without cause basis; although depending on the employment relationship significant severance may be owed to the employee. In the unionized context, cause is generally required to terminate an employee.
 See for example, Kelly v Linamar Corp, 2005 CarswellOnt 6611 where the employee in question was arrested for child pornography.
 See for example, Merritt v Tigercat Industries, 2016 ONSC 1214 where the employee in question was arrested for sexual assault against a minor. See also Backman v Hyundai Auto Canada Inc (1990), 100 NSR (2d) 24.
 See for example Hyland v Royal Alexandra Hospital, 2000 ABCA 153, affirming (2000) ABQB 458.
 See for example Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D), Re, an Ontario arbitral decision, the principles of which may apply in a non-unionized employment context.
 See Millhaven Fibres Ltd v Oil Chemical & Atomic Workers Int’l Union, Local 9-6709,  OLAA No 4 (QL) at para. 20 for additional considerations.
 See for instance Jazairi v. Ontario (Human Rights Commission), 1999 CanLII 3744 (Ont. CA) [Jazairi ONCA], and Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII)
 See Al-Dandachi v. SNC-Lavalin Inc., ibid., for additional considerations.