News

Legal Notes: Off Duty Conduct & Discpline

July 6, 2017 at 9:00am

We’ve all witnessed employees doing inappropriate things while on the job and in uniform. Remember those videos of airport cargo handlers throwing luggage? Or what about the time when a transit operator was videotaped while telling a passenger to “kiss my a**”?

In these and other similar cases, employers often decide to discipline the employee. Usually, the discipline is an attempt to control any negative effects the event could have on the employer’s business.

But what about the times when there is no name tag or uniform? What happens if an employee does something on their own time? When a person is going about their day, away from work and the prying eyes of their bosses, it’s easy to believe that anything goes. Sure, you might not break any laws but anything shy of that should be fine, right? Well, it’s not that simple.

UFCW Locals 175 & 633Smart phones, social media, and the 24-hour news cycle have made the world a much smaller place. Your every move can be seen around the world in no time.

You may argue it’s nobody’s business – and that might be true – but when has that ever stopped people before? So chances are, if something out of the ordinary happens, someone is probably recording it. You might not think this smaller world should affect your personal life and the workplace, but it can and sometimes does.

Take the case of the CityTV heckler from the summer of 2015: A man made a series of sexist statements to a female reporter while on live television. The video went viral. Scores of Internet sleuths took it upon themselves to identify the man as Shawn Simoes, who was subsequently identified as an employee at Toronto Hydro. Soon after that – he was fired for his connection to the on-camera lewd behaviour.

As an employee, you might question what right an employer has to impose discipline for off-duty conduct.

Canadian law, however, is clear: An employer can discipline unionized employees for behaviour outside of the workplace. This type of behaviour will normally be assessed according to a series of factors originally established in the case of Re Millhaven Fibre Ltd., Millhaven Works, and Oil, Chemical & Atomic Workers International Union, Local 9-670 (1967).

These factors, which do not all have to be met, include whether:

  • The conduct has harmed the company’s reputation or business.
  • The conduct renders the employee unable to perform his duties.
  • The behaviour leads to refusals to work with the employee.
  • There was a violation of the criminal law.
  • The employee’s conduct interferes with the employer’s ability to carry on its business.

In the case of the CityTV heckler, you can be sure that the decision to terminate the employee involved an assessment of the damage the incident caused to Toronto Hydro’s reputation. Right or wrong, the company likely viewed the negative press as an interference with its business.

While this employee was eventually reinstated, that outcome is not the experience of many terminated workers.

Taken even further, it is commonly held in Canadian law that reputational damage can have a more significant effect on the resulting discipline if the employer is an organization which is afforded a significant degree of public trust; think school boards or other government organizations. In such cases, questionable off-duty conduct often leads to more severe consequences for employees.

While the above are worst-case scenarios, they should serve as a warning to employees on how not to conduct themselves in public. If you are conducting yourself in a disorderly or belligerent fashion while away from work, you better believe that you can be identified using the miracle of modern technology. And if this happens, you should be aware of the risks that exist to your employment.

At the end of the day, however, we are not all likely to be stars on the evening news. Instead, the worst-case scenario is that we embarrass ourselves in front of a handful of people. But even so, it doesn’t hurt to behave and avoid the embarrassment altogether.