Dealing with employees’ off-duty conduct

8 juin 2022 | Danny Alcorn

( Disponible en anglais seulement )

Employers are increasingly faced with public pressure to discipline employees who engage in offensive conduct or who post offensive content online while off-duty. Employers must balance this public pressure with their duties and obligations to their employees. Determining what to do can be a difficult task.

Off-duty conduct, including off-duty public comments, can warrant discipline up to, and including, termination under the right circumstances. The primary consideration is whether the employee’s off-duty conduct or comments has had a negative effect on the company’s reputation or its ability to operate its business effectively. When relying on reputational harm to ground discipline, the employer must establish a real and material connection between the off-duty conduct and the workplace, and the harm caused must be substantial.

Importantly, it is not necessarily the risk of reputational harm or harm to the business, but actual harm that is most relevant.

In wrongful dismissal disputes involving terminations for off-duty conduct, adjudicators will also consider:

  1. whether the employee’s conduct renders them unable to perform their duties satisfactorily;
  2. whether the employee’s conduct results in a refusal, reluctance, or inability of other employees to work with them; or
  3. whether the employee has been found guilty of a serious breach of the Criminal Code such that the conduct is injurious to the general reputation of the employer and its employees.

Negative or offensive public comments by employees about co-workers, superiors, and the employer have grounded just cause for termination under the right circumstances. These types of comments are connected to the workplace and may be more likely to harm the employer’s reputation or business interests.

Comments or conduct that are offensive to some, but not otherwise tied to the workplace, are not necessarily sufficient to ground just cause for termination in the absence of extenuating circumstances, such as a history of progressive discipline, particularly when associated with similar conduct, or proof of actual harm to the employer’s reputation or business interests.

An employer may establish a sufficient connection to the workplace if the employee makes a comment on a personal social media platform that references their employment with the employer, or where their conduct or comment draws substantial public attention. Of course, sufficient connection may not be enough on its own in the absence of actual harm to the employer.

If an employer determines that discipline is warranted, it must demonstrate that the discipline engaged in is proportionate to the misconduct in question. Termination for cause is the “capital punishment” of employment law. An employer choosing to terminate an employee for cause for their off-duty conduct or comment must demonstrate a balance between the severity of the misconduct and the sanction imposed. Employers should consider whether alternatives to termination exist that would adequately address the employee’s conduct.

Even if “just cause” cannot be established, employers in non-unionized workplaces may still have the option to terminate without cause.  Generally, such employers are entitled to terminate employees without cause as long as they comply with the specific terms of the employment agreement and the reasonable notice obligations noted in the next paragraph. The ability to terminate without cause provides more leeway to non-unionized employers because they are not required to justify the termination. Thus, employers in the non-unionized environment who cannot establish cause, but fear that future harm may occur as a result of their employee’s off-duty conduct or comment, may consider terminating the employee without cause.

Although the employer is not required to provide a reason for the without cause termination, they are required to provide reasonable notice of the termination, or pay in lieu of notice. Employers in the non-unionized context are well-advised to include a clause in their employment contracts limiting the amount of notice to that offered in the relevant employment standards legislation. Failure to do so may result in liability to the employee for additional pay in lieu of notice, depending on the circumstances.

In the unionized context, just cause for termination must be established.

In conclusion, employers concerned about an employee’s off-duty conduct would be wise to not act rashly. Even where an employee’s conduct or comment is highly publicized, the employer must consider whether there is actual damage to its business interests or significant damage to its reputation, and whether the conduct in question is sufficiently connected to the employment relationship. An employer seeking to terminate an employee for cause should conduct a thorough investigation to satisfy itself that the relevant criteria are met before proceeding with terminating for cause.

Employers must also consider whether the conduct resulting in discipline is related to a protected ground under relevant human rights legislation. Discipline for off-duty conduct that is associated with a protected ground may result in a finding that the employer has discriminated against the employee.

In all circumstances, employers can help protect themselves by establishing clear policies outlining the type of conduct that is prohibited and the form of discipline employees will face if they breach the policy. Social media and other public comment policies have become commonplace.

When in doubt, employers should contact a lawyer for advice on how to proceed and how to mitigate their risks.

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