Employees have an obligation to avoid doing anything that is prejudicial (or is likely to be prejudicial) to the interests or reputation of his or her employer. Consequently, the activities of an employee that fall outside the scope of employment may constitute cause for dismissal in rare cases.
Just cause for off-duty conduct can be proven if an employer establishes at least one of the following:
1. The employee’s conduct harms the employer’s reputation and/or product;
2. The employee’s conduct renders the employee unable to perform his/her duties
3. The employee’s conduct leads to a refusal, reluctance or inability of other employees to work with him/her;
4. The employee is guilty of a serious breach of the Criminal Code, consequently rendering his/her conduct injurious to the reputation of the employer and its employees; or
5. The employee’s conduct interferes with the employer’s ability to properly carry out its
function or efficiently manage its operations and/or workforce.
Not long ago, a reporter was discharged after sending a box of contaminated chocolates to the head of a political lobby group. The BC Supreme Court held that the misconduct fundamentally breached his employment relationship with his employer CBC, thus justifying summary dismissal. On appeal, however, the Court of Appeal determined that “the behaviour in issue was one incident, promptly confessed, acknowledged and rectified by the employee before harm was done”. The Court of Appeal concluded that there was a basis upon which the arbitrator could conclude that the public trust was not irreparably fractured, and that a significant suspension was a just and reasonable discipline in the circumstances: Canadian Broadcasting Corp. v. Canadian Media Guild, 2007 BCCA 232.
In a more high-profile story, CBC decided to fire radio host Jian Ghomeshi after serious allegations of harassment and sexual assault outside of the workplace came to light. Although the alleged behaviour was not apparently related to Ghomeshi’s employment (despite other workplace complaints against Ghomeshi which CBC failed to investigate), and the conduct in question occurred when he was technically off-the-clock, outside of the workplace, and in his private life, Ghomeshi’s case is a clear-cut example of how off-duty conduct, the notoriety surrounding the misconduct, and its profoundly negative impact on an employer’s reputation can lead to dismissal.
Accordingly, an employee’s off-duty conduct can impact his or her employment and relationship with the employer. When confronted with concerns about an employee’s off-duty conduct, employers ought to conduct a workplace investigation into the alleged misconduct and consider the following in order to determine the appropriate form of discipline: the employee’s role, duty and responsibilities; the employee’s length of service and performance history; the nature of the employer’s business; the severity of the alleged conduct; and the employee’s response when questioned about the allegations. Having conducted a proper and thorough investigation, an employer will be in a better position to decide on the appropriate form of discipline (up to termination), and be able to justify its decision in court.