Not a pretty picture or thought but it raises the very serious question of where the line is drawn on employer discipline or termination for employee off duty conduct.
Canadian Courts often find that conduct outside the workplace is irrelevant to discipline or termination of an employee, even if such conduct is criminal in nature. However, where the off duty conduct is somehow related to or affects the workplace, this can be grounds for discipline and potentially termination for cause. Further, even if there is not a connection between the misconduct and the employee’s work, employers in the public eye have an additional argument to be made that continuing the employee’s employment has the potential of bringing the employer into significant public disrepute, which can be grounds for a just cause termination.
Classic Canadian case law examples include the courts upholding the just cause termination of an employee charged with child pornography; and an ethics professor who cheated on his taxes.
The most common considerations of our courts and arbitrators include whether the off duty conduct:
1. Detrimentally affects the employer’s reputation;
2. Interferes with the employee's performance of his or her employment duties;
3. Causes other employees to refuse to work with him or her; or
4. Inhibits the employer’s ability to efficiently operate.
What should Employers do to minimize risk?
1. Your hire or policy documents should include a warning to your employees that off duty conduct that harms the reputation or business of the employer can lead to discipline and or dismissal.
2. Your ongoing training and education of your employees should also communicate this message.
3. If a situation like this arises please seek experienced legal advice as appropriate action will vary based on specific facts and context.
Following recent events in Charlottesville, Virginia involving a “Unite the Right” rally organized by multiple white nationalist groups protesting the removal of a statue of Robert E. Lee, which turned violent and ended in the tragic deaths of a counter-protestor and two police officers monitoring the situation, a large social media campaign has been undertaken in order to identify the protestors and encourage their employers to terminate their employment.