Just cause dismissal for off-duty conduct upheld

Exclusive to Canadian HR Reporter from Rudner Law.

We recently wrote about a BC teaching assistant who was supplementing her income with an OnlyFans account, landing her in hot water with her employer who presented her with the option of ceasing her online activities or being fired. As Stuart Rudner explained in that post, whether or not an employee can be fired for off-duty conduct depends on the circumstances.

As a starting point, an employee is generally entitled to do what they want on their own time. However, in some cases discipline for off-duty conduct is warranted, including where the conduct harms the employer's reputation, interferes with the performance of the employee's duties, or causes other employees to refuse to work with them.

The recent arbitration decision of Corporation of the City of Calgary v Amalgamated Transit Union, Local 583 is an example of a situation where the employer was held to be justified in dismissing an employee for just cause due to their off-duty conduct.

The background

Outside of working hours, two employees took a car for a test drive that one was potentially interested in purchasing. During the test drive, one of the employees began making sexual advances towards the other, including reaching over to hold her hand, suggesting they be "friends with benefits" and that they could "fool around". Despite the female employee clearly refusing these attempts, the male employee continued his advances.

Later, the female employee gave the male employee a quick hug goodbye, at which time he reached up and stroked her breast.

The female employee did not report the incident to her employer, as she did not feel the incident had anything to do with work. However, the employer ultimately did learn about the incident, and commenced a workplace investigation which ended with the male employee being dismissed for cause. His union grieved the dismissal.

The arbitrator concluded that the male employee's misconduct "sufficiently engage[d] the interests of the employer to justify a disciplinary response despite the off-duty nature of the conduct". He dismissed the grievance, finding that the misconduct justified termination of employment for just cause.

Assessing off-duty conduct and just-cause dismissal

In assessing whether the misconduct was subject to discipline given its off duty nature, the arbitrator considered the fact that the male employee was a transit operator, which is a public facing role wherein he was expected to be an "ambassador for the City", and was a position of trust.

He had no difficulty concluding that:

• off-duty sexual harassment and sexual assault on a co-worker harmed the reputation of the City
• given his position of trust, the misconduct created issues with respect to the male employee's ability to perform his role
• the sexual harassment and sexual assault would likely make other co-workers reluctant to work with the employee
• the misconduct created operational challenges for the City as it would be difficult for the City to guarantee that the male employee and female employee would not come across each other in the course of their duties.

Despite the fact that the male employee had relatively long service with the City and a previously discipline-free record, the arbitrator concluded that just cause dismissal was an appropriate disciplinary response given the seriousness of the misconduct and the City's responsibility to provide its employees with a safe working environment.

In addition, the male employee had not demonstrated any real insight into why his behaviour was wrong or truly accepted responsibility for his actions.

Take-aways

This case is an important reminder for employees that off-duty conduct can impact the employment relationship, including leading to termination for just cause in certain circumstances. This is particularly true for employees who hold a position of trust within the workplace and whose actions are more likely to reflect back on the employer. It is also important to remember that employers should not turn a blind eye to harassment simply because it occurs outside of working hours or of the four walls of the workplace.

While this case is helpful for employers, it is important to remember that just cause for dismissal is a very high standard to meet and that not all off-duty conduct will be subject to discipline. This is a case dealing with exceptional facts given the highly serious nature of the misconduct and the public facing role held by the employee.

If you have been dismissed due to off-duty conduct, or are considering dismissing an employee for off-duty conduct, we encourage you to speak with an employment lawyer before making any decisions or taking action.

Brittany Taylor is a partner at Rudner Law in Toronto. She can be reached at (416) 864-8500 or [email protected].