Date: 2007
Author: Daniel A. Lublin
Publication: Metro
Employees who believe that their conduct away from the office is immune from discipline are mistaken.  Where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.

• Personal blog postings made on an employee’s own personal time can come back to haunt the employee.  Just ask Linda Clark, who lost her job because her employer, a retirement home, came across a personal blog she created with postings that expressed her disdain for the residents and management.  It didn’t matter that Clark had created and maintained her blog at home or that she intended for it to be private; its connection to the workplace was obvious and any member of the public could view it.

• Pictures or postings on Facebook, Myspace or YouTube are fair game for employers where indiscriminate content impacts, or potentially impacts, the company’s reputation, trade secrets or competitive advantage.  It seldom matters where the content of the postings were created or even if the employee doesn’t access these websites from work.  If the content can be construed as having a connection to the workplace, discipline may be forthcoming.

• Criminal behaviour unrelated to the workplace but which nonetheless injures an employer’s interests can amount to cause for dismissal.  In 2005, former supervisor Philip Kelly unsuccessfully sued Guelph auto parts manufacturer Linamar Corp. for wrongful dismissal after it fired him for cause following publicized criminal charges of possessing child pornography on his personal computer at home.  Unprepared to wait years before Kelly’s criminal trial was decided and risk further negative press, Linamar fired Kelly based on unproven allegations of conduct away from work.  The court agreed with Linamar because of the potential damage to its reputation, which it jealously guarded.

• Off-duty conduct that casts doubt on your honesty or the ability to perform your job can be cause for dismissal.  In a previous column, I wrote about the University of Western Ontario’s business professor, who was dismissed after the University learned that he had been charged with engaging in an insurance fraud scheme.  In dismissing his case, the court found the professor’s conduct was immoral and dishonest and had brought the reputation of the University into disrepute.

• When the public’s safety is in issue, your personal business becomes your employer’s problem.  Courts will generally support employers who dismiss employees whose off-duty drug or alcohol habits pose legitimate on-the-job safety concerns.

• Where off-duty conduct creates a serious conflict of interest with the work of the organization, employees may successfully be fired for cause.  In a notorious Canadian case, a CIBC bank teller was fired after her employer learned that she was cohabiting with a convicted bank robber.  In this case, actual harm was unnecessary; it was the potential for harm that was sufficient.

Despite these examples, proving just cause often remains a daunting task for employers. Both they, and their employees, should gauge the following rules:

• Proof of misconduct may not be present, but it seldom matters if it is conduct that is, or is likely to be, injurious to the interests or reputation of the employer.

• Proving just cause for dismissal is more likely to be successful if there are negative public consequences or unfavourable publicity brought on as a result of off-duty conduct.

• Off-duty behaviour that renders other employees unwilling to work with the perpetrator can be grounds for immediate dismissal.