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The new HR trend: Off-duty conduct termination

The new HR trend: Off-duty conduct termination

Audrey DeMarsico, Osler, Hoskin & Harcourt LLP, HRinfodesk, published by First Reference, July 2015

Facebook firings are increasingly common, and off-duty conduct continues to make headlines, from Jian Ghomeshi and Floyd Mayweather, to Members of Parliament and the recent case of Shawn Simoes, the Hydro One employee fired for harassing a reporter at a soccer game which was recorded and posted on the internet.

Can employers use employees' bad off-duty behaviour to justify discipline, including termination?

According to 149 out of 308 respondents to the latest HRinfodesk poll, yes, it is right for an employer to discipline for off-duty conduct. However, 72 of the respondents were not sure, which left 87 who disagreed completely.

Of course in employment law, the answer would be it depends on the circumstances of a particular case.

As an employer or a human resources professional, you should ask yourself the following questions before you decide to discipline an employee:

  1. Are your employees unionized?
     
  2. Is there a nexus between the off-duty conduct and the employment relationship?
     
  3. Is the disciplinary measure proportionate to the seriousness of the conduct?
     
  4. Is the off-duty conduct related to a protected ground under human rights or health and safety legislation?
     
  5. Is your workplace in the public sector?
     

Each of these considerations is discussed below, along with some practical steps you can take to make sure that any disciplinary measure will be upheld in the event of a challenge.

1. Are your employees unionized?

First, as an employer, you should consider whether your employees are unionized. If they are, there is probably a term in the collective agreement that governs the extent to which you can regulate employee conduct and the circumstances under which you can discipline employees.

For example, many collective agreements contain a rule that employers can only terminate employees for “just cause.” This generally means the employer would have to show that the employee's conduct was so bad that it caused a breakdown in the employment relationship [1].

An employer could establish this if the employee engaged in conduct that was inconsistent with his or her employment obligations, such as a schoolteacher who posts child pornography.

On the other hand, there might also be a specific term in the collective agreement that governs the conduct in question. For example, if there is a rule that imposes consequences for employees who harass their co-workers, a tribunal would probably find that this applies to online bullying [2].

2. Is there a nexus between the off-duty conduct and the employment relationship?

Even when employees are not unionized, the employer can only discipline for off-duty conduct if there is a “nexus,” or connection, between the off-duty conduct and the workplace [3].

A court or tribunal would consider the following factors in deciding whether this nexus exists:

  • The employee's conduct harms the company's reputation or product.
     
  • The employee's conduct renders the employee unable to perform his or her duties satisfactorily.
     
  • The employee's conduct makes other employees unwilling, unable or reluctant to work with the employee.
     
  • The employee has been guilty of a serious breach of the Criminal Code, thus rendering his conduct injurious to the general reputation of the company and its employees.
     
  • The employee's conduct makes it difficult for the company to properly carry out its function of efficiently managing its works and efficiently directing its working forces [4].

As an employer, you would not necessarily have to prove all five of these factors to justify discipline. A tribunal could even find a nexus without going through the factors, if for example an employee has been stealing from the employer during non-working hours [5]. However, the more factors you can prove, the stronger your case will be.

3. Is the discipline proportionate to the seriousness of the conduct?

If you decide to discipline the employee, you should be careful that the measures you take are not excessive. If you terminate an employee when a suspension would have been enough, a tribunal could order you to reinstate the employee and to pay compensation for lost wages and benefits [6].

When you are deciding on the appropriate discipline, you should consider the following factors:

  • The employee's previous good record.
     
  • The employee's length of service.
     
  • Whether or not the offence was an isolated incident in the employee's employment history.
     
  • Whether the employee's conduct was provoked.
     
  • Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated.
     
  • Whether the penalty imposed has created a special economic hardship for the employee in the light of his particular circumstances.
     
  • Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination;
     
  • Circumstances negating intent, such as the likelihood that the employee misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
     
  • The seriousness of the offence in terms of company policy and company obligations.
     
  • Any other relevant circumstances, such as whether you have met with the employee and given him or her an opportunity to explain the conduct [7].

After you have considered these factors, you may find that it is not necessary to impose a harsh penalty such as termination. You may find that a lesser measure is sufficient, such as a warning letter or a temporary suspension.

However, even if some of these factors seem to favour the employee, you might still be justified in dismissing him or her if the conduct has rendered the employment relationship untenable. In this regard, you can consider these contextual factors together with the “nexus” factors that are set out further above [8].

4. Is the off-duty conduct related to a protected ground under human rights or health and safety legislation?

Before you decide on a disciplinary measure, you should consider whether the conduct is related to a protected ground under human rights or occupational health and safety legislation.

For example, if the employee's off-duty conduct stemmed from a disability such as addiction or a mental health disorder, the employer has a duty under human rights legislation to accommodate the disability up to the point of the employer experiencing undue hardship in making the accommodation [9].

Therefore, you should ask the employee whether he or she suffers from a disability that could have caused the conduct you are concerned about. If there is a problem with addiction or mental health, you should offer accommodations such as a reasonable period of time off to deal with the problem, or employer-sponsored counselling or treatment programs.

As for occupational health and safety, in several jurisdictions like Ontario, British Columbia, Manitoba and Saskatchewan, the law requires employers to take measures to protect workers from hazards and injuries related to workplace harassment, including assessing the risk of harassment and violence in the workplace. When assessing, employers must consider what unique considerations apply when an employee's off-duty misconduct involves harassment or violence. How can employers and unions ensure the safety of the work environment if a harassing or violent employee remains in the workplace?

5. Is the workplace in the public sector?

If the workplace is in the public sector, there will probably be legislation that imposes restrictions on what employees can do when they are off-duty, such as lobbying [10]. If there is a specific rule that applies, you may not need to go through the list of factors to prove a nexus as discussed above.

For police officers in particular, detailed codes of discipline or codes of conduct are included in most provincial police acts, as well as the federal RCMP Act, or in subordinate legislation (regulations or by-laws) enacted under them [11]. These codes generally contain restrictions on political activities, as well as prohibiting conduct that is likely to discredit the police force [12].

Therefore, if you are a public sector employer, you should consider whether there is a law or a code of conduct that applies to the activity you are seeking to discipline. If there is, it will be easier to justify your disciplinary measure.

Conclusion

There is no bright-line rule that prevents an employer from disciplining an employee for off-duty conduct. However, it is important that you consider a number of factors before you decide to impose a disciplinary measure.

The most important principle that underlies the analysis will be the connection between the off-duty conduct and the workplace. In order to justify discipline, you will probably have to show that the conduct has the potential to seriously impact your company's reputation or business, or the work environment. In addition, you should talk to the employee to find out why he or she engaged in the conduct, and consider whether there are measures you could take to accommodate any disability he or she is experiencing.

Finally, if you do choose to impose discipline, think about whether it would be sufficient to give the employee a warning or a temporary suspension instead of proceeding directly to the drastic measure of termination.

Employers can better equip themselves to prevent and address their employees' off-duty misconduct by implementing the following best practices:

  • Establish clear policies. Employers should consider addressing inappropriate off-duty behaviour in their workplace policies, such as a Code of Conduct that indicates what constitutes off-duty misconduct. The policy should clearly state that employees who violate the policy may be subject to discipline, up to and including termination. In this increasingly digital age, employers are well-advised to also have a policy that specifically addresses the use of social media, outlining what is considered inappropriate use of social media both in and out of the workplace-especially if the employee indicates where they work and what they do for the company.
     
  • Communicate and enforce your policies consistently to ensure that employees are aware of policies and are abiding by it. Train all employees on workplace policies and have employees sign off on them. Once in place, ensure that policies are enforced fairly and consistently so that employees have clear expectations regarding their behaviour. In particular, be mindful not to “condone” an employee's bad behaviour by failing to address it in a timely manner.
     
  • Respond to complaints in a timely and appropriate manner. While employers may be tempted to act swiftly where an employee's bad behaviour is making headlines, remember that it is important to conduct a meaningful investigation into any allegations of misconduct, in order to determine the appropriate and proportional discipline. Take care to document everything and ensure that the employee is provided an opportunity to respond to the allegations.
     
  • Ensure that the punishment fits the crime. As with any form of workplace discipline, the penalty imposed must be proportional to the offence, taking into consideration all mitigating and aggravating factors, such as the severity of the offence and the employee's past discipline record. For example, as was illustrated in the case of the tweeting firefighters, a prolonged series of highly offensive comments will justify a harsher penalty than a single comment made in poor taste. When it comes to termination, only in the most egregious cases will a single incident of misconduct (whether on- or off-duty) constitute just cause for termination of an employee with an otherwise clean discipline record.



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