Off-Duty Misconduct

• Mitchell
  Hayward

  Mitchell
  Hayward

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Discipline becomes difficult to navigate when it comes to off-duty misconduct. Employers are often left with questioning where the line should be drawn with respect to when they can discipline, or even terminate, an employee for misconduct that occurs outside of work hours.

With social media and new work from home policies, the lines between work and social lives are becoming increasingly blurred. In an ideal world, an employee’s personal life would be separate from their employment; however, that’s often not the case.

Generally speaking, an employee’s off-duty conduct will not be a concern to the employer unless there is a sufficient nexus (a real and material connection) to the workplace.

In Millhaven Fibres Ltd v Oil, Chemical & Atomic Workers Int’’ Union, Local 9-670, an Ontario Arbitrator set out five factors to consider when examining whether off-duty misconduct warrants disciplining or dismissing an employee. For the Employer to justify discipline, the employees conduct must have:

1. Harmed the employer’s reputation or product
2. Rendered the employee unable to satisfactorily perform duties
3. Lead to refusal, reluctance or inability of others to work with the employee
4. Made it difficult for employer to carry out function of managing its works and directing its workforce

Generally speaking, employers will seek to assess whether the conduct in question has affected its reputation or business interest.

In the age of social media, this threshold can easily be met. In EV Logistics v Retail Wholesale Union, Local 580, a British Columbia Arbitrator explained that discriminatory comments made online by employees during off work hours posed significant reputational risk to the employer because “anyone with a computer has access and entry, which obviously includes customers, suppliers, the public, employees, and potential employees.”

Likewise, in Canada Post Corp v Canadian Union of Postal Workers, a Canadian Labour Arbitrator explained that “what employees write in their Facebook postings, blogs, and emails, if publicly disseminated and destructive of workplace relationships, can result in discipline.”

After establishing one of the Millhaven factors are engaged, an employer must then demonstrate that the conduct in question was serious enough to warrant disciplining or dismissing the employee.

Like most labour and employment law cases, whether or not conduct warrants just-cause termination depends on the facts. The following are a non-exhaustive list of relevant factors that Courts and Arbitrators may consider in determining whether the conduct warrants discipline or termination:

1. The nature of the conduct in question (i.e. was it hateful, threatening or discriminatory)
2. The frequency at which the conduct occurred
3. Whether the conduct was deliberate
4. Whether the conduct was motivated by malice towards the employer or co-workers
5. Whether there is any impact on the workplace
6. The length of the employee’s record of service
7. Prior discipline of the employee

Courts have found the following “off-duty” incidents to warrant just-cause termination of one’s employment:

1. Where a janitor of a school sexually assaulted a minor who attended a different school;
2. When a manager was arrested and charged with possession of child pornography;
3. Uttering death threats to co-workers outside of work hours;
4. Posting disparaging comments about clients online;
5. Posting disparaging comments about co-workers online;
6. Posting racist comments online; and
7. Assaulting a man who crossed a picket line during a strike.

Ultimately, like most employment and labour law cases, the outcome will depend on the facts at hand. If you need assistance in an employment law related matter please feel free to reach out to your contact within our Labour & Employment Law Team, or the author of this post.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.