In the age of social media and perpetual digital interconnectedness, incidents of employee off-duty misconduct are increasingly making their way back to employers. Merely one example of this trend was featured in a recent news article, where a bike messenger got into a violent altercation with a driver that was caught on videotape and shared on the internet. The video found its way to the bike messenger’s employer, leading to termination. When employees are involved in incidents such as this, employers must consider the potentially serious reputational risks to their organization and how they can effectively manage their workforce.
We have previously written a blog about dismissal for off-duty misconduct, but with recent media attention on the issue, now is a good time to dive deeper into the topic and review the law in this area. In part one of our two-part series, we will examine the general legal principles relating to termination for off-duty misconduct and provide recent examples of off-duty misconduct where employers have successfully justified just cause dismissals. In next week’s blog, we will focus specifically on social media conduct that has justified dismissal.
The Legal Framework for Just Cause Dismissal for Off-Duty Misconduct
Employers generally have the right to dismiss employees for both on-duty and off-duty misconduct if the conduct is detrimental to their best interests. In Millhaven Fibres Ltd. v Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, an arbitrator set out five factors that judges and arbitrators may use to determine whether off-duty misconduct creates a foundation for discipline, up to and including dismissal. For an employer to be able to justify discipline or dismissal, an employee’s conduct must:
- harm the employer’s reputation or product;
- render the employee unable to perform his/her duties satisfactorily;
- lead to refusal, reluctance, or inability of the other employees to work with the employee;
- result in a serious breach of the Criminal Code, therefore rendering the employee’s conduct injurious to the general reputation of the employer and its employees; or
- make it difficult for the employer to properly carry out its function of efficiently managing its work and directing its workforce.
However, even where an employee’s off-duty misconduct meets one of the above criteria, employers must still establish just cause for dismissal in order to avoid paying potentially costly termination entitlements. Just cause is a high standard that is only met when an employee’s misconduct is so egregious that it is incompatible with the fundamental terms of the employment relationship, thus leading to a breakdown in the employment relationship. To determine if just cause exists, decision-makers will examine the nature and extent of the misconduct, consider the surrounding circumstances, and weigh whether the misconduct is sufficiently serious in the circumstances to warrant dismissal. Some specific factors that the decision-maker will examine include:
- the seriousness of the employee’s offence;
- whether the employee’s conduct was premeditated, repetitive or provoked;
- the length of the employee’s record of service;
- whether the employer engaged in progressive discipline prior to dismissal; and
- whether the employee’s dismissal is in line with the employer’s policies and past record.
Examples of Off-Duty Misconduct Warranting Just Cause Dismissal
Although courts and arbitrators have examined a variety of off-duty misconduct leading to dismissal for cause, recent decisions have focused on criminal or quasi-criminal misconduct and the reputational risks employers may experience as a result.
In Kelly v Linamar Corporation, the Ontario Superior Court upheld an employer’s decision to dismiss on a for cause basis a well-respected mid-level manager who had regular contact with suppliers and customers in the community after he was arrested and charged with the possession of child pornography. The Court found that termination for cause was appropriate in the circumstances because the employer had a strong reputation in its community of being a good corporate citizen and engaging in community-based activities, including with youth who needed to be protected. The Court also found that the employee was in a position that required him to work with various members of the community, so he had a duty not to engage in conduct that would undermine his ability to do so. Given that the arrest was highly publicized, the employee breached this duty.
Further, in CUPE, Local 474 v Edmonton School District No 7, the Alberta Court of Queen’s Bench upheld an arbitrator’s finding that a school board had just cause to terminate a custodian after he was charged with sexually assaulting a minor who attended a school different than the one he worked in during the summer months. The Court determined that the arbitrator’s finding was reasonable with respect to the employee’s conduct being “inimical to his continued employment in a school environment”.
Examples of Off-Duty Misconduct Not Meeting Just Cause
An employee being charged with, or engaging in, illegal conduct is not however always enough to establish just cause. In Merritt v Tigercat Industries an employer dismissed an employee of 17 years after he was charged with sexually assaulting two minors. The Ontario Superior Court found that dismissal for cause was not warranted because the charges did not relate to the employee’s employment with the company or co-workers; there was no evidence that the charges would damage the employer’s reputation; and the employee as a truck driver was not in a position of responsibility with the organization.
Similarly, in Klonteig v West Kelowna (District), the British Columbia Supreme Court found that dismissal for cause was not warranted for a 13-year assistant fire chief who received a driving suspension for failing two roadside breathalyzer tests. The Court stated that the employee’s off-duty misconduct was not sufficiently incompatible with employment or detrimental to the employer’s reputation to warrant dismissal for cause because, although the employee was driving the employer’s vehicle when he failed the breathalyzer tests, the vehicle was unmarked; there was no public knowledge of the employee’s administrative suspension; the employee’s conduct was not as morally reprehensible as in other cases such as for an employee possessing child pornography; and the employee was not the public face of the company.
Employees are not immune from dismissal related to off-duty misconduct, and employers may be able to justify just cause dismissal in certain egregious circumstances that harm the employer’s reputation. If an employee’s off-duty misconduct harms an employer’s interests and is so egregious as to meet the high legal standard required for cause, an employer has the right to dismiss the employee without payment of the employee’s termination entitlements. When it comes to off-duty criminal or quasi-criminal conduct, which is particularly worrisome because employees and their actions can readily be connected to employers in today’s digital age, meeting the just cause threshold depends on the severity of the circumstances. While each case will be fact-specific and require a contextual analysis, if an employee engages in off-duty conduct that is serious, publicly known, and irreconcilable with the employee’s duties or employer’s business, an employer may well be able to dismiss that employee for cause.
Next week, we will discuss an employer’s ability to dismiss on a for cause basis employees for egregious off-duty social media conduct.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.