When can employers discipline or terminate employees for off-duty behaviour?
Workplace sexual harassment and violence stunned Canadians this year, with allegations against Members of Parliament and media personalities-besides high profile sports personalities in the United States-splashed across the headlines. The case of Jian Ghomeshi and the CBC in particular stirred debate, mainly around the question, Should employers be able to hold employees' off-duty conduct against them?
The public response to Ghomeshi's termination was quick and often sharply divided. Many condemned the CBC, arguing the employer had no business firing Ghomeshi for private and consensual acts. Others supported the CBC and the alleged victims of Ghomeshi's actions. Some held their judgment.
Our readers weighed in on the question in a recent HRinfodesk poll. Of 277 respondents, more than half (56 percent) said employers might be justified in disciplining employees for off-duty behaviour, but it would depend on the employee's position in the organization. One-quarter (25 percent) said yes, employers should be able to punish employees for conduct outside of work. Almost one-fifth (18 percent) thought employers should have to keep their noses out of employees' private business. Two respondents (1 percent) didn't pick a side.
So what does the law say?
Can employers use employees' bad off-duty behaviour to justify discipline, including termination? The majority of our survey respondents were correct: yes, but it depends.
Employees have a duty of good faith toward their employers, which means that they should avoid acting in a way that will negatively affect their employer's interests, even when they aren't actually working. What this means in practical terms, however, is not so obvious. Employers must perform an individual analysis to determine whether an employee's behaviour is likely to harm or has harmed the employee's business.
In general, three factors will determine whether an employee's conduct outside of work might be grounds for punishment or dismissal:
- The employee's position and the employer's reasonable expectations of the employee
- The nature of the imputed conduct
- The effect (i.e., harm) the conduct has on the employer's business and reputation
(The case of Kelly v. Linamar Corporation, 2005 CanLII 42487 (ON SC) offers a summary of the law at paragraph 26.)
Some specific considerations include
- The employee's length of employment
- Prior misconduct and discipline
- The level of trust required
- The employee's response
- Contractual provisions
In unionized workplaces, like the CBC, the standard test involves five factors that expand on the general principles:
- Did the employee's conduct harm the company's reputation?
- Did the employee's behaviour render the employee unable to perform his or her duties satisfactorily?
- Did the employee's behaviour lead to refusal, reluctance or inability of the other employees to work with him or her?
- Is the employee guilty of a serious breach of the Criminal Code, injuring the general reputation of the company and its employees?
- Did the employee's conduct make it difficult for the employer to properly manage its work and direct its workforce?
(Re Millhaven Fibres Ltd. and Oil, Chemical and Atomic Workers I.U Loc 9-670,  OLAA No 4)
Without a doubt, legal advice will be crucial before acting. The analysis will cover a number of potentially complex legal issues.
Employee privacy can play a big part in this type of case. Employees have a reasonable expectation of privacy-particularly with respect to their behaviour away from work-and employers must be careful about publicizing an employee's personal or private information or using that information in a decision to terminate.
In the Ghomeshi case, the CBC initially offered only a very general statement about the decision to terminate. It was only after Ghomeshi related his version of the story on Facebook that the employer responded with a moderately more detailed statement. It also seems that Ghomeshi volunteered the CBC a substantial amount of personal information in order to exonerate himself. However, it appears to have had the opposite effect, as the CBC used that information in its decision to terminate Ghomeshi. We'll likely hear further arguments about privacy as this case progresses.
Policies and enforcement
What policies an employer has in place and how it enforces them will likely come into play when an employer wants to discipline an employee who behaves poorly away from work. Many employers use a code of conduct to cover the employment relationship, and this will offer guidance when questionable behaviour threatens that relationship. However, for such a code or policy to be enforceable, it must be reasonable and comply with legal standards, and the employer must have applied it consistently in the past. Lax enforcement of workplace policies opens a clear path to trouble.
It appears that the CBC failed to live up to its own duty to protect its employees-or worked to protect the wrong employee for the wrong reason. One co-worker of Ghomeshi has alleged he touched her inappropriately and harassed her, and her complaints to the union and the employer went ignored. If an employer expects its employees to follow conduct guidelines, an employee may expect the employer to follow its own policies. Since Bill 168 became law, employers have been required to implement policies, procedures and training with respect to workplace violence and harassment, including how to respond to and investigate complaints.
Employment agreements (morality clause)
More specifically, employers may want to include in their employment agreements a morality clause that strictly (but again reasonably) proscribes the employee's off-duty conduct. The clause must be clear and specific to avoid unduly limiting the employee, particularly with respect to human rights. If the offending behaviour is the result of a disability for instance, employers will have to seriously investigate accommodation before considering serious discipline.
The issue of off-duty conduct extends well beyond sexual harassment, however. Courts and arbitrators have accepted employers' right to discipline and fire employees in circumstances from inappropriate online/social media activity to consorting with criminals. Where an employee uses company hardware or software, employers may also have the right to access their information and use it as evidence-without employees' consent. And a criminal conviction is a convincing argument for discipline.
Stuart Rudner adds:
"This is not unlike the situation last week where a 73-year-old teacher at a highly respected Jesuit college in Quebec was dismissed when erotic films that she was in 50 years earlier surfaced online.”
A broad range of conduct, going well back into a person's past, may be seen to harm the employer's interests and justify discipline and termination where the employment relationship is irreparably damaged.
It remains to be seen what all of this means in the Ghomeshi case. He has dropped his lawsuit against the CBC, but now a criminal investigation has begun, and who knows what we'll hear and when we'll see the end of it.
After some pressure in the assembly, Queen's Park has responded to the issue of sexual harassment and violence with:
"A package of initiatives to raise awareness of sexual violence and harassment, enhance prevention initiatives to combat sexual discrimination, harassment and violence, and improve support for victims.”
Starting in 2015, the province plans to:
- Launch a public education campaign to challenge norms, behaviours and myths around sexual violence and harassment and raise awareness of supports available to victims
- Introduce measures to improve government policies, procedures and training for MPPs, premiers' and ministers' offices, and other government staff members
- Create a standing Roundtable on Violence Against Women, including experts on safety and equality, to provide input into the government's initiatives
- Work across several ministries to develop options to enhance support for victims of sexual violence relating to the criminal justice system, policing, health care, education, post-secondary campuses and Ontario workplaces
The government hopes to produce an action plan by International Women's Day, March 8, 2015.
For more information on this issue, search HRinfodesk.com for “off duty conduct.”