Many employers and employees are of the mistaken belief that an employee’s off-duty conduct cannot be the basis for discipline or termination. Not true. If an employee’s behaviour outside of the workplace jeopardizes an employer’s reputation or business interests the employee’s conduct may be fair game.
Making a Connection
A key consideration in an employer’s ability to discipline an employee is the connection between the employee’s improper behaviour and the workplace. Consider social media postings that are made after working hours. An employer who discovers that an employee is posting its confidential information or who uses social media to make disparaging remarks about his/her supervisor will likely be able to take action against the employee. Similarly, an employee who uses social media to bully or harass a fellow employee outside of the workplace is exposed to discipline and possibly termination. Simply because the postings occurred after work hours and on a personal social media account will not protect the employee.
An employee’s illegal behaviour outside of the workplace is another common example of inappropriate behaviour away from work that may be the subject of discipline. This can be embarrassing for an employer, especially when it becomes a matter of public knowledge. However, the fact that an employee has been charged with or convicted of a criminal offence does not automatically allow the employer to end the relationship without any obligation. An employer’s ability to show that its reputation will suffer and the employee’s ability to effectively perform their role at work will be important factors.
In one case, an Ontario university dismissed an instructor for just cause where the instructor taught business ethics and was convicted of insurance fraud. The employee, who had been a good employee, sued for wrongful dismissal. At trial the judge accepted the employer’s cause defence and emphasized the potential damage to the University’s reputation and institutional interests.
Investigate!
To the extent that it is possible, employers need to investigate the off-duty incident. Understanding the context of an incident and giving the employee an opportunity respond are essential parts of the process. A failure to investigate the matter could jeopardize an employer’s right to treat the behaviour as employment misconduct.
Factors to Consider
In considering whether an employee’s bad behaviour outside of work can result in disciplinary action (and possibly termination for cause), the following factors are need to be considered:
- The extent of the damage (or potential damage) to the employer’s reputation or other business interests;
- The nature of the employee’s misconduct and whether there is any connection or “nexus” to the workplace;
- The employee’s position within the company and their ability to continue to effectively perform in their role (including consideration of how they are viewed by other employees);
- Any explanation for the employee’s seemingly improper behaviour; and
- The application of any relevant employer policies or rules.
Termination? With or Without Cause?
Where an employer determines that an employee’s off-duty behaviour is misconduct, a decision will need to be made as to penalty. Depending on the circumstances the employee may be dismissed with cause or subject to other disciplinary action.
In some cases an employee’s behaviour may not result in a finding of misconduct or support a just cause termination. However, there may have been a revelation about an employee’s character that results in their employer exercising its right to terminate the employment relationship without cause and providing the employee with severance.
Be Proactive
Prudent employers will have already communicated their expectations of employee off-duty conduct in written employment contracts or other workplace policies. Doing so will provide some clarity about circumstances where inappropriate behaviour outside of work may be treated as workplace misconduct. It will also help employees understand that their actions outside of the workplace may have serious consequences for the employment relationship.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
