Author: Daniel A. Lublin
Employees who believe that their conduct away from the office is immune from discipline are mistaken. Employers have the technological means — and occasionally the inclination– to monitor behaviour that occurs away from the job. And where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.
- 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.
- Similarly, employees in a heightened position of trust have greater off-duty responsibilities. The Ontario Court of Appeal recently dismissed the appeal of Hamilton’s former Director of Labour Relations who harassed a co-worker away from work. The employee’s position and the fact that he helped distribute harassment policies at work contributed to his failure at trial.
- 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, who was using their residence as a centre of operations. 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, ruinous 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.