Off-duty conduct can be a perplexing and difficult headache for employers. In an era where almost everything is recorded, poor behaviour by employees — even if it’s on their own time, far away from the spotlight of the workplace — can quickly go viral and have a negative impact on a company’s reputation.
While there is no hard-and-fast rule about disciplining workers for off-the-clock behaviour, Lai-King Hum, founder of Hum Law Firm, said employers can act when such actions threaten an employer’s standing in the community or affect workplace dynamics.
“Every single case is going to be unique,” Hum said. The main factors to consider include the nature of the employer’s business and the responsibilities of the employee in question, she said.
“Is there a connection between the off-duty conduct and their duties? Has the conduct caused harm to the employer’s business or reputation?”
Hum pointed to cases where an employee’s actions outside of the workplace made it difficult for them to continue their job, such as a coach accused of misconduct with students. Even if the behaviour occurred outside the training facility, it could erode trust and impact the employer’s reputation.
“Trust is a key part of that employee’s job,” Hum said. “If that trust is broken, it’s very hard for the employee to perform their role.”
The Linamar ruling
An example is what happened in 2001 involving possession of child pornography. The Ontario Provincial Police (OPP) began an investigation after receiving tips from authorities in Texas about Canadians who were involved in purchasing child pornography. “Operation Snowball” looked into the activities of nearly 1,000 Ontario residents who were identified as being customers of a company producing the illegal materials.
P.K., an employee of Linamar in Guelph, Ont., was arrested and charged with possession of child pornography after police executed a search warrant at his home on January 21, 2002. On January 24, 2002, Linamar terminated his employment for cause.
A letter signed by Linamar’s operations manager read: “As you are also aware, Emtol Manufacturing and its parent company, Linamar Corporation, actively promote and contribute to the community and children’s programs including a focus on elementary aged school children for the purpose of furthering a business and community reputation.”
The letter continued: “As a result of your misconduct, which has been published to the community at large, the Company’s legitimate interests have been negatively affected. In addition, your conduct has impacted upon the workplace and employee morale to such an extent that employees have indicated a refusal to work with you. Under these circumstances, and in light of your management position, you have left us no alternative but to terminate your employment effective immediately on a for cause basis.”
P.K. sued for wrongful dismissal. While P.K. had not yet been convicted of a crime, a court ruled Linamar was justified in terminating his employment for cause. “Linamar has over a long period of time built up a good reputation which it jealously protects. That reputation includes the promotion of its activities with young people outlined earlier,” the court said. “A company is entitled to take reasonable steps to protect such a reputation and the termination of (P.K.) was just such a step. The employer has demonstrated just cause on far more than the balance of probabilities.”
Terminating without cause also an option
Hum noted that employers often have the option of terminating without cause, especially in non-unionized environments, if they are concerned about public backlash or reputational damage from the off-duty conduct.
“You could terminate without cause if you are worried about a backlash, and pay out appropriate termination pay,” she said.
In unionized environments, employers might also decide that termination for cause is the best response, even if there is a risk an arbitrator could order the employee’s reinstatement.
“In that case, the employer concerned about public backlash or reputational damage could say, ‘We believe we have cause, but we’ll accept the risk that maybe an arbitrator finds otherwise. If ordered to reinstate, at least the public will know the tribunal ordered the reinstatement,’” said Hum.
Social media amplifies issue
A growing number of off-duty conduct cases arise from the digital sphere, particularly social media. Sites like TikTok are full of amateur sleuths who will track down the identities of people behaving poorly in public, outing not just their names but also that of their employer.
If the behaviour is outrageous, and there is a real concern about PR, then Hum’s advice would be to terminate the worker after consulting a lawyer. That’s because taking action in the moment can help preserve a company’s reputation, she said, particularly if the comments or behaviour is egregious and involve someone senior or easily identifiable with the company.
“The risk is they will come back and say, ‘Well, you terminated me for cause and you shouldn’t have,’” said Hum. “Then the employer can deal with it, but their reputation, the company’s reputation, will be saved. In these situations, the company can argue that the conduct is contrary to the duties of the person and harmed the company.”
Professional licensure
There are also instances where off-duty conduct affects professional licensure, compounding the issue for the employee. Hum recounted a case where a teacher in Coquitlam, B.C., was fired for posting suggestive photos on the platform OnlyFans.
“It wasn’t compatible with their role as a teacher,” she said.
A copy of the termination letter in that case, obtained by Global News, listed six reasons for the teacher’s dismissal, including the “sexualization of the school environment.”
“Employees must remember they are role models within the community and must not engage in offduty activities, including online and social media activity, which place them in a conflict of interest whether actual or perceived or which may negatively affect the District’s operations, reputation or work environment,” it read.
Lawyers and other regulated professionals face similar risks when their off-duty actions undermine the trust required in their profession, said Hum.
The industry matters
Hum also said that industries matter in off-duty conduct cases. For example, a restaurant server’s off-duty behaviour might not impact their job as much as a public accountant charged with tax fraud.
“There’s not a real tie-in between the nature of the server’s work and off-duty conduct,” she explained. “But if you are a chartered accountant caught for tax fraud, that would significantly affect clients’ trust in your company’s reputation.”
Workplace investigations?
When asked if employers should conduct investigations into off-duty conduct, Hum said it depends on the nature of the incident. For example, social media posts are often public, making an investigation unnecessary, though obtaining the employee’s explanation of their conduct might still be necessary. However, when allegations are unclear or disputed, an investigation may be necessary to determine the facts.
Ultimately, Hum sees two main factors in off-duty conduct cases: whether the behaviour harms the employer’s reputation, and whether the conduct renders the employee unable to perform their job.
“Where trust is broken or the employee is unable to perform their duties satisfactorily, it can form the basis for termination,” she said. Each case, however, must be evaluated on its own merits, with careful consideration of the risks and potential fallout for both the employee and the employer, said Hum.
If you need guidance from an experienced employment lawyer, contact Hum Law today at (416)214-2329 or Complete our Free Assessment Form Here. For more information, visit https://thehumlawfirm.ca/
