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You Did What? Limits on Off-Duty Conduct
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You Did What? Limits on Off-Duty Conduct

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What are the employer rights and employee obligations when it comes to off-duty conduct?

What are the employer rights and employee obligations when it comes to off-duty conduct?

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You Did What? Limits on Off-Duty Conduct You Did What? Limits on Off-Duty Conduct Presentation Transcript

  • You Did What!? Limits on Off Duty Conduct Allen Soltan and Tatha Swann9666464
  • Limits on Off Duty Conduct – Introduction Starting Point: In general, what employee does on his or her own time and outside the workplace is employee’s business (employer has no interest in activities of employees outside of working hours and away from employer’s premises)
  • Limits on Off Duty Conduct – Introduction cont’d• However, there are exceptions to this principle which arise when off duty conduct has a direct connection to employee’s position and/or employer’s operations• Employee’s involvement in certain types of off duty conduct can raise employment concerns and may constitute cause for discipline or termination
  • Implied Duty of Fidelity• Common law implies a term that an employee perform his or her employment duties “faithfully”• Employee’s off duty misconduct may constitute a breach of this implied duty and cause for discipline or termination
  • Misconduct + Real/Material Connection• Before disciplining or terminating employee for off duty conduct, employer must be able to:  Prove misconduct by employee  Demonstrate “real and material connection” to workplace (i.e., to employee’s position or employer’s legitimate interests) that is substantial and warranted
  • Proving Misconduct1. Proving Misconduct By Employee• Discipline or termination usually not supportable if employer cannot prove misconduct actually occurred• As a result, important to conduct thorough investigation into alleged misconduct
  • Real/Material Connection to Workplace Demonstrate “real and material connection” to workplace (i.e., to employee’s position or employer’s legitimate interests) that is substantial and warranted• Whether “real and material connection” exists will usually depend on: • Nature of employee’s duties • Employer’s expectations for employee’s conduct • History and quality of employment relationship • Nature and seriousness of employee’s conduct • Impact of employee’s conduct on employer’s business and reputation
  • Real/Material Connection to Workplace• “Real and material connection” likely established where off duty conduct involves, for example: • Damaging employer’s property • Harm to customer relations • e.g., employee assaults a customer • Harm to work environment • e.g., employee assaults a management employee • Public criticism of employer • e.g., employee posts damaging comments about employer on Facebook resulting in demonstrable loss of business
  • Real/Material Connection to Workplace• “Real and material connection” likely not established where off duty conduct involves, for example: • Office employee driving dangerously on way to work, but duties do not require operation of a motor vehicle • Retail employee buying marijuana from another employee outside workplace and working hours • Chef convicted of spousal assault
  • Real/Material Connection to Workplace• To justify discipline or discharge for off duty conduct, employer must show:  Employee’s behaviour harms employer’s reputation or product;  Employee’s behaviour renders him or her unable to perform his or her duties satisfactorily;  Employee’s behaviour leads to refusal, reluctance or inability of other employees to work with employee;  Employee’s conduct makes it difficult for employer to properly carry out its function of efficiently managing its work and directing its workforce; and/or  Employee has been guilty of a serious breach of Criminal Code, thus rendering his or her conduct injurious to general reputation of employer and its employees
  • Real/Material Connection to Workplace– Central Questions 1. Harm to Employer’s Reputation • Public controversy, negative press or bad publicity • e.g., pilot of an airline that provided services primarily to First Nations communities created Facebook posts with racial overtones related to First Nations1 • e.g., two car dealer employees created Facebook posts ridiculing their supervisor and warning against buying cars from their employer “since they’re all crooks”2 • Even potential harm to reputation may be enough • e.g., manager of an employer with a reputation for philanthropy and supporting school children accused of using his home computer to access child pornography3 • e.g., customs officer identified himself as a federal government employee to obtain preferential hotel rate and later involved in aggressive and crude altercations with hotel staff41 – Wasaya Airlines LP v. Air Line Pilots Assn, International (Wyndels Greivance), [2010] C.L.A.D. No. 297)[“Wasaya”]2 – Lougheed Imports Ltd. V. UFCWIU, Local 1518, 2010 CanLII 62482 (BC Lab. Rel. Bd.) [“Lougheed”]3 – Kelly v. Linamar Corporation, [2005] O.J. No. 4899 (Ont. Sup. Ct.) [“Kelly”]4 – Re Treasury Board (Revenue Canada - Customs & Excise) and Dupuis, (1989) 10 L.A.C. (4th) 76 [“Dupuis”]
  • Real/Material Connection to Workplace – Central Questions 1. Unable to Perform Duties Satisfactorily  Conduct makes it impossible for employee to perform duties • e.g., absence from work due to incarceration (may “frustrate” employment contract in non-unionized context) • e.g., loss of driver’s licence or professional credential where required  Conduct results in loss of credibility, respect and judgment for employee in position of trust or influence • e.g., consultative psychologist at maximum security prison guilty of criminal harassment of women5 • e.g., business professor involved in insurance fraud scheme • e.g., public school teacher authored materials denying the Holocaust occurred65 – Tobin v. Canada (Attorney General), [2009] F.C.J. No. 968 (Fed. Ct. Justice) [“Tobin”]6 – Ross v. New Brunswick School District No. 15, [1996] S.C.J. No. 40 [“Ross”]
  • Real/Material Connection to Workplace– Central Questions 1. Negative Effect on Other Employees  Evidence that off duty conduct has undermined the trust of fellow employees may also be important • e.g., female employees refused to work with prison guard criminally charged with using binoculars to spy on an ex-girlfriend at her home77 – Keating v. Ontario (Min. of Comm. Safety & Corr. Serv.), [2009] O.P.S.G.B.A. No. 5 (Pub. Serv. Griv. Bd.)[“Keating”]
  • Real/Material Connection to Workplace– Central Questions 1. Interference with Employer’s Ability to Manage Business and Workforce  Conduct criticizing business and/or its customers • e.g., retirement home employee posted photos of residents and comments critical of employer, co-workers, and residents on the internet8 • e.g., two car dealer employees creating Facebook posts ridiculing their supervisor and warning against buying cars from their employer “since they’re all crooks”9  Conflicts of Interest / Non-Compete / Non-Solicit • e.g., language teacher soliciting students in his class to enrol in private lessons he gave after school108 – Canada, Local 127 v. Chatham-Kent, [2007] O.L.A.A. No. 135 (Ont. Lab. Arb.) [“Chatham-Kent”]9 – Lougheed10 – Dupont and Treatury Bd. (Public Serv. Comm.), [1987] C.P.S.S.R.B. No. 188 (Can. Pub. Serv. Lab. Rel. Bd.) [“Dupont”]
  • Real/Material Connection to Workplace– Central Questions Serious Breach of Criminal Code - Off Duty Criminal Conduct  Off duty criminal conduct by employee does not automatically constitute cause for termination  Seriousness based on nature of conduct and punishment • e.g., conviction of violent crime such as homicide and sexual assault almost always cause for discipline or discharge  Closer the connection between the conduct and the employee’s position, the more likely cause for discipline will be established • i.e., theft or fraud may justify termination of employees in financial positions or who handle cash
  • Dziecielski v. Lighting Dimensions Inc. – April 2012• 45 year old VP of Toronto based company, 23 years service• Terminated after conviction of drunk driving following accident in employer’s vehicle• Ontario Superior Court of Justice upheld termination • Single isolated incident of intoxication generally not cause for dismissal • However, serious misconduct (1) in the course of employment, (2) while operating employer’s vehicle, and (3) conduct attracted criminal sanction • Prejudicial to employer’s business – put employer at risk of third party claims of vicarious liability and increased WSIB premium costs • Customers and suppliers might think less of employer if could not properly control and direct employees • Damage to employer’s property
  • Real/Material Connection to Workplace– Central Questions  To establish cause for discipline or discharge of an employee charged with or convicted of a criminal offence, employer must usually: • Demonstrate employee’s presence at work presents a reasonably serious and immediate risk to legitimate interests of employer • Does behaviour for which charge was laid or conviction imposed pose a threat to employer’s ability to carry on business safely and efficiently? • Proof is on a balance of probabilities, having regard to: a)nature of criminal charge or conviction; and b)potential harm to employer’s legitimate interests
  • Real/Material Connection to Workplace– Central Questions • Demonstrate employer investigated the conduct giving rise to criminal charge or conviction • What were the circumstances and particulars of charge or conviction? • Demonstrate employer has taken reasonable steps to determine whether potential risk of harm to employer’s interests may be mitigated by transfer of employee or closer supervision • How much time has elapsed since charge or conviction, and what has employee done during that time? • Has employee shown any tendencies to repeat the type of conduct for which employee was charged? • Has employee shown a firm intention to rehabilitate himself or herself?
  • Real/Material Connection to Workplace– Central QuestionsWhat if employee is incarcerated?• In non-unionized context, incarceration of employee may “frustrate” employment contract or constitute cause for dismissal• Interests of employer and employee are balanced in determining whether incarceration constitutes cause for dismissal
  • Real/Material Connection to Workplace– Central Questions• Relevant factors generally include: • seriousness of offence and length of employee’s sentence • length of employee’s service • history and quality of employment relationship • availability of banked time • ability of employer to cover employee’s absence • impact of employee’s absence on employer’s interests
  • Human Rights ConsiderationsOntario Human Rights Code• Section 5 says that every person:  has a right to equal treatment with respect to employment without discrimination because of record of offences  who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of record of offences• “record of offences” is defined as a conviction for:  an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or  an offence in respect of any provincial enactment
  • Human Rights Considerations – cont’d• Section 5 only covers criminal convictions for which pardons have been granted and provincial offences (i.e., a conviction under Highway Traffic Act)• In Ontario, an employee will not succeed in a complaint alleging discrimination or harassment on the basis of “record of offences” if the employee has been: a) charged with a criminal offence; or b) convicted of a criminal offence (unless a pardon has been granted)