Piling Canada

Off the Clock?

Dealing with employees’ off-duty conduct
July 2022

Photo: diego_cervo/123RF

The rise of social media and access to the internet has enabled people to connect and share information, opinions and beliefs with one another in an unprecedented manner. Individuals can document activities and post content virtually instantly. In many ways, this enhanced connectivity is positive. However, it can also create an uncomfortable situation for employers who may not always agree with their employees’ social media activity. Employers are increasingly faced with public scrutiny and pressure to act when their employees post offensive content or engage in offensive conduct that becomes public. Employers must deal with the unenviable task of balancing public scrutiny and pressure on the one hand, with their duties and obligations to their employees on the other. Determining what to do can be a difficult task.

Off-duty conduct, including off-duty public comments, can warrant discipline up to and including termination under specific circumstances. The primary consideration is whether the employee’s off-duty conduct or comments had a negative effect on the company’s reputation or its ability to operate effectively. When relying on reputational harm to ground discipline, the employer must establish a real and material connection between the conduct and the workplace, and the harm caused must be substantial.

Employers concerned about an employee’s off-duty conduct would be wise not to act rashly.

Importantly, it is not necessarily the risk of reputational harm or harm to business, but actual harm that is most relevant.

In wrongful dismissal disputes involving terminations for off-duty conduct, in addition to the key considerations of harm to reputation and business, adjudicators will also consider whether:

  1. The employee’s conduct renders them unable to perform their duties satisfactorily;
  2. The employee’s conduct results in a refusal, reluctance or inability of other employees to work with them; or
  3. Whether the employee has been found guilty of a serious breach of the criminal code such that the conduct is injurious to the general reputation of the employer and its employees.

Negative or offensive public comments by employees about co-workers, superiors and the employer have grounded just cause for termination under specific circumstances. These types of comments are more likely to have a sufficient connection to the workplace and are more likely to harm the employer’s reputation or business interests.

Comments or conduct that are offensive to some, but that are not otherwise tied to the workplace, are not necessarily sufficient to ground just cause for termination in the absence of extenuating circumstances, such as a history of progressive discipline, particularly when associated with similar conduct or proof of actual harm to the employer’s reputation or business interests.

An employer may establish a sufficient connection to the workplace if the employee makes a comment on a personal social media platform that references their employment with the employer, or where their conduct or comment draws substantial public attention. Of course, sufficient connection may not be enough on its own in the absence of actual harm to the employer.

Further, labour and employment law favours progressive discipline. Employers should consider whether alternatives to termination exist that would adequately address the employee’s conduct. Labour and employment adjudicators will consider an employee’s disciplinary history in considering whether termination is justified.

In every case, an employer must be able to show that the discipline is proportionate to the misconduct in question. Termination for cause is understood to be the “capital punishment” of employment law. An employer choosing to terminate an employee for cause for their off-duty conduct or comment must demonstrate a balance between the severity of the misconduct and the sanction imposed.

Comments or conduct that are offensive to some, but that are not otherwise tied to the workplace, are not necessarily sufficient to ground just cause for termination.

In a non-unionized workplace, employers are generally entitled to terminate employees without cause, subject to the specific terms of the employment agreement. This is not the case in unionized workplaces, where the collective agreement generally requires cause for termination. The ability to terminate without cause provides more leeway to employers to terminate an employee for off-duty conduct or public comments because the employer is not required to justify the termination. Employers in the non-unionized environment who cannot establish just cause, but fear that future harm may occur as a result of their employee’s off-duty conduct or comment, may consider terminating the employee without cause.

Although the employer is not required to provide a reason for the termination, they are required to provide adequate notice of the termination, or pay in lieu of notice. Employers in the non-unionized context are well-advised to include a clause in their employment contracts limiting the employee’s notice to that offered in the relevant employment standards legislation. Failure to do so may result in liability to the employee for additional pay in lieu of notice, depending on the circumstances.

Employers concerned about an employee’s off-duty conduct would be wise not to act rashly. Even where an employee’s conduct or comment is highly publicized, the employer must consider whether there is actual damage to its business interests or significant damage to its reputation, and whether the conduct in question is sufficiently connected to the employment relationship. An employer seeking to terminate an employee for cause should conduct a thorough investigation to satisfy itself that the relevant criteria are met before proceeding with terminating for cause.

Employers must also consider whether the conduct resulting in discipline is related to a protected ground under relevant human rights legislation. Discipline for off-duty conduct that is associated with a protected ground may result in a finding that the employer has discriminated against the employee.

In all circumstances, employers can help protect themselves by establishing clear policies outlining the type of conduct that is prohibited and the form of discipline employees will face if they breach the policy. Social media and other public comment policies have become commonplace.

When in doubt, employers should contact a lawyer for advice on how to proceed and how to mitigate their risks. Piling Canada

Miller Thomson provides practical, timely and responsible advice and services to its clients. For inquiries about the subject matter covered in this article, contact Danny Alcorn, an associate in the Saskatoon office at dalcorn@millerthomson.com.

Disclaimer: this publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

This article originally appeared in Think BIG and is reproduced here with permission.


Categories: Business

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