Lawyer Erin Brandt (nee Kizell), Contributor.
We thought we had missed our window to comment on the issue of employee off-duty misconduct, now that more than two months have passed since Hydro One employee Shawn Simoes was fired for his on-air harassment of a television news reporter.
However, the topic is once again in the news after a Calgary taxi passenger was caught on video shouting racist abuse and obscenities at his driver, and was subsequently fired by his employer. (No word yet on whether the young man who disrupted a CBC reporter by kissing her on the cheek while she was broadcasting live from the Squamish Valley Music Festival is facing any employment repercussions – although it seems unlikely given the public’s response, his prompt apology and his apparent young age and possible lack of employment!)
These high profile incidents, and others like them in recent months, suggest that dismissal for off-duty misconduct is on the rise or, at least, a new phenomenon. In fact, Canadian law has long recognized the rights of employers to discipline or dismiss an employee for conduct she engages in outside of the workplace IF that conduct harms her employer or its business.
Before we examine the issue of off-duty misconduct specifically, however, we thought it helpful to revisit a few key legal principles regarding employee dismissal in Canada:
- An employer can fire an employee at any time for any reason (absent a human rights violation), so long as it gives the employee “reasonable notice” of the firing, or an amount of money in lieu of such notice.
- The exception to this general rule occurs when the employer has “just cause” for dismissal – in such cases, the employer can fire the employee immediately, without incurring any severance liability.
- Just cause will generally exist if an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or wilful disobedience. Examples of such misconduct include theft and routine insubordination.
- Typically, a single instance of misconduct will not suffice for “just cause”, except where the misconduct is intrinsically serious (one example being sexual harassment involving aggressive, non-consensual physical contact).
- An employer’s decision to dismiss an employee must be taken in good faith, non-arbitrarily, and without discrimination (see McKinley v BC Tel).
What about where the misconduct does not happen “on the job”? In what circumstances will bad behaviour outside the workplace give an employer cause for dismissal? According to a 1967 Ontario decision in the union context that is unreported, yet frequently cited by Canadian courts, an employer can fire for cause if:
- 1.The employee’s conduct harms the company’s
reputation or product
- .
- 2. The employee’s behaviour renders the employee
unable to perform
- her duties satisfactorily.
- 3. The employee’s behaviour leads to refusal, reluctance or inability of
other employees
- to work with him.
- 4. The employee is guilty of a
serious breach of the Criminal Code
- , making her conduct injurious to the general reputation of the company and its employees.
- OR
- 5. The employee’s conduct interferes with the
employer’s ability to properly carry out its functions
- or efficiently manage its operations and/or workforce.
A more recent employment law case from Ontario, Kelly v. Linamar Corporation, echoed the principles underlying the above test (without mentioning the 1967 decision). There, the court concluded that the employer had cause to dismiss a management employee after he was charged with possession of child pornography, and both this fact and the identity of his employer were made public. The employer argued, and the court agreed, that the employee’s misconduct had a significant negative impact on the company’s reputation and legitimate business interests, particularly given the fact that the employer had built up an excellent reputation in the community as a good corporate citizen with a special emphasis on philanthropy directed towards young children.
Bottom Line
The bottom line for employers is that you have every right to protect your business and reputation by dismissing an employee who threatens those things (again, so long as you don’t violate that employee’s human rights in so doing).
Whether you can avoid any severance liability for such a dismissal, however, will depend on the circumstances, including the severity of the employee’s misconduct and the impact of that misconduct on your company, as well as the nature of the employee’s past service (e.g. her position and past performance).
As in all cases, we recommend you consult with an employment lawyer if you become aware of off-duty misconduct by an employee that could harm your business or the workplace before taking any steps to discipline, or fire, the employee.
Have questions about off-duty misconduct? Contact us!
