What’s the deal with off-duty conduct?

By Stuart Rudner

So, can you be fired for something you do on your own time, off-duty and away from work? The simple answer is yes, you can, in the right circumstances.

Even if you are not explicitly or implicitly representing your employer? Yes, in the right circumstances.

Even if your behaviour has nothing to do with work and does not involve your colleagues or supervisors? Again, yes, in the right circumstances.

Is this a new law? No. The law has always provided for discipline or dismissal as a result of off-duty conduct, in limited circumstances. However, the issue rarely came up before the advent of social media, cellphone cameras and YouTube. Now, a new situation seems to arise every week involving an employee doing something while off-duty that leads to workplace consequences.

The issue comes up far more often in the United States, as its population is so much larger than ours. However, even in Canada, we have seen dismissals for off-duty conduct including:

• A Toronto Symphony Orchestra performance by a Ukrainian-born pianist cancelled due to comments she made on Twitter regarding the conflict between Russia and Ukraine.
• Two Toronto firefighters dismissed due to inappropriate comments and Twitter, and a third due to FaceBook comments.
• Jian Ghomeshi, star radio host of our national broadcaster, fired due to harassment and sexual assault which came to light after his miscalculated FaceBook post.
• An Ontario Hockey League referee suspended after posting insulting comments about the women of Sault Ste. Marie on Twitter.
• Two Ontario Hockey League players also suspended due to offensive comments about women on Twitter.
• Perhaps most offensive of all, an individual who wrote “Thank God the b*tch is dead” on a Facebook wall created in memory of a 15-year-old girl who committed suicide after years of bullying.

Most recently, headlines, talk radio and social media have been focused on a video of an incident outside a Toronto FC soccer game in which several people followed the ridiculously offensive trend of heckling female reporters on air by yelling “F--- her right in the p----.” The trend is known by the acronym FHRITP.

Reporter Shauna Hunt admirably confronted the FHRITP “group,” demanding to know why they did it and why they thought it was funny. Hydro One employee Shawn Simoes dug himself even deeper into a hole he created by repeatedly defending the conduct. His conduct was completely inappropriate and offensive.

Ultimately, it became known that Simoes is on Ontario’s “Sunshine List,” which means he makes more than $100,000. The incident has become synonymous with Hydro One, which has an obvious impact on its reputation even though Simoes’ disgusting behaviour had nothing to do with his work or his employer.

He was quickly fired. We do not know if it was with or without cause.

In Canada, there are only two types of dismissal: with cause or without. The vast majority of dismissals are without cause (including downsizings, reorganizations and the like), in which case the employee is entitled to notice  of dismissal or pay in lieu thereof. The amount of notice, or pay in lieu, is based upon a number of factors which I have discussed in previous blogs, including here and here.

However, if someone is dismissed with cause, they are not entitled to anything: no notice, no severance, no pay in lieu. It is obviously a harsh result, which is why some Judges have referred to it as the “capital punishment of employment law”.

I wrote a book on the issue and it is updated twice a year, which means I have read thousands of cases on the subject. It is a complicated issue and the only absolute rule is every case must be considered based upon its own particular circumstances, which includes all relevant factors. In other words, an employer cannot consider the alleged misconduct in isolation.

The threshold for establishing just cause for dismissal is quite high, as the punishment must be a proportionate response. In assessing whether just cause is warranted, the alleged misconduct cannot be considered in isolation; all relevant circumstances must be taken into account. This is something that comes as a surprise to many: the misconduct is not to be considered in isolation. Additional factors to be considered include:

• the individual’s length of employment
• the individual’s disciplinary record
• the nature of the individual’s position
• the degree of trust required
• the individual’s response when confronted with allegations of misconduct
• any mitigating factors
• anything else that relates to the employee’s honesty or trustworthiness or the viability of continuing the employment relationship.

Proportionality is a fundamental principle in this context and, in many cases, courts will conclude that discipline was warranted but that summary dismissal was too harsh. That said, there are frequent examples of dismissals that held up under judicial or arbitral scrutiny. As I often say, “Just cause is not a lost cause”; summary dismissal will be upheld in appropriate circumstances.

In many cases, employers will learn of misconduct and make the practical decision they do not want to continue employing the individual in question. That seems to be what happened to Simoes. He may or may not have been offered a severance package; we do not know. But, from a public relations standpoint, Hydro One is able to say it does not tolerate this type of behaviour and will act swiftly to deal with it.

That case is an anomaly. Typically, I advise employers not to react in haste; our firm recommends a proper investigation and consideration of the issues before a decision regarding discipline is made. However, in some circumstances, other considerations trump the legal ones.

Every time a new case like this makes the news, people express their shock and, in some cases, outrage that an individual has lost her job for what she did on her own time. Time and time again, I have warned people to be careful about what they do at all times, since off-duty conduct can have workplace consequences. Yet the message does not seem to be sinking in.

Once again, the dismissal of Simoes has led to significant public debate. Many have insisted his conduct took place while off-duty and had nothing to do with his job. Others have focused on the misguided view of “freedom of speech,” suggesting it provides for freedom from all consequences.

The fact is, our laws start with the assumption that what an employee does on his own time is his own business. However, there have always been exceptions. As set out in the 1967 decision in Re Millhaven Fibres Ltd. and Oil, Chemical and Atomic Workers I.U Loc 9-670, discipline can be imposed for off-duty conduct where

• The employee’s conduct harms the company’s reputation or product.
• The employee’s behaviour renders the employee unable to perform their duties satisfactorily.
• The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him or her.
• The employee is guilty of a serious breach of the Criminal Code, causing injury to the general reputation of the company and its employees
  or
• the employee’s conduct makes it difficult for the employer to properly carry out its functions of efficiently managing its work and efficiently directing its workforce.

It is critical to remember that the considerations above relate to dismissal for cause. However, most employees in Canada (unless they are unionized) can be dismissed at any time, for almost any reason, as long as they are provided with sufficient notice or pay in lieu. As a result, an employer is perfectly entitled, in most cases, to decide it does not approve of an employee’s conduct and it will therefore let the person go. Of course, certain grounds are protected by human rights legislation, so an individual cannot be fired due to their gender, religion, disability, etcetera.

However, most employees in Canada (unless they are unionized) can be dismissed at any time, for almost any reason, as long as they are provided with sufficient notice or pay in lieu. As a result, an employer is perfectly entitled, in most cases, to decide it does not approve of an employee’s conduct and it will therefore let the person go. Of course, certain grounds are protected by human rights legislation, so an individual cannot be fired due to their gender, religion, disability, etcetera.

The bottom line is whether you agree with it or not, off-duty conduct can lead to discipline and dismissal, whether it be with or without cause. And the same conduct that may have gone unnoticed in the past may now have consequences, due to the fact it may “go viral” and attract unwanted attention for the person and her employer. The “Hydro One incident” is a great example of this. Simoes did something stupid that, in the past, may have blown over quickly. In this case, the video became a social media sensation, his employer learned of it and decided it wanted nothing more to do with him. As a result, his long-term career with Hydro One was destroyed in an instant.