policies & procedures
Off-Duty Conduct
WHEN CAN IT LEAD TO AN EMPLOYEE GETTING FIRED?
By Kathryn F. Hordienko
It is becoming increasingly clear that
employees can be fired for off-duty
conduct, even when the events are unrelated
to their employment. While
many employees are under the impression
that how they behave in their private
lives cannot impact their livelihoods, incidents
recently portrayed in the media
– including Jian Ghomeshi of the CBC
and Toronto FC fan Shawn Simoes of
Hydro One – are putting those beliefs
to rest. The reality is that in certain instances,
employers are legally entitled to
dismiss employees for conduct outside of
the workplace.
In the new digital age of social media,
employees’ private lives are becoming more
visible than ever before. Behaviour of individuals
outside the workplace is more
readily accessible to their employers. This
enhanced visibility is in turn heightening
employers’ risk of reputational harm,
and complicating the ability to manage
their workforce. The consequence is an
increased likelihood that employees will
be disciplined or dismissed for off-duty
conduct.
These employees may be dismissed on
a “without cause” basis, where a severance
package is provided. Or, they may
be dismissed on a “just cause” basis if their
off-duty conduct is deemed sufficiently serious
– taking into account resulting harm
to the company to meet the legal threshold
for firing without any severance pay
owing. Either way, they will have lost their
jobs due to their behaviour outside of the
workplace.
FACTORS FOR EMPLOYERS TO
CONSIDER
The question to ask is when will an
employee’s conduct outside the workplace
warrant the ultimate punishment
of employment law – termination of
employment?
In Canada, the presence of one of the
following factors may entitle the employer
to terminate on a “just cause” basis for offduty
conduct:
■■ Does the conduct harm the employer’s
reputation?
■■ Does the conduct render the employee
incapable of performing his or her
duties satisfactorily?
■■ Does the conduct lead to a refusal,
reluctance or inability of other
employees to work with him or her?
■■ Is the conduct a serious breach of the
Criminal Code?
■■ Does the conduct make it difficult for
the employer to carry out its functions
and/or manage its workforce?
RECOMMENDATIONS
HR professionals can assist employers in
proactively addressing off-duty conduct to
allow for swift action and decreased exposure
to the company and its operations, as
follows:
1. CLEAR TERMINATION
CLAUSES IN CONTRACTS
Ensure that the termination provisions in
employment contracts expressly list offduty
misconduct as a ground for just cause
termination. Ideally, this ground would include
wording that the termination would
be at the employer’s discretion. While the
merit of such a dismissal would still rest
on the facts, a well-worded clause is the
first step towards an enforceable termination
for just cause.
2. COMPREHENSIVE
COMPANY POLICIES
Ensure that clearly written and detailed
policies are in place to specifically address
expectations regarding off-duty conduct,
including on social media, as well
Deborah Kolb/Shutterstock.com
HRPATODAY.CA ❚ OCTOBER 2015 ❚ 51