Blog Posts

Damien Buntsma

Hydro One’s swift termination of an employee due to his harassing behaviour towards a television reporter at a soccer game has sparked much media attention and discussion. Two questions arise about the rights of employers in non-unionised settings: Can they terminate an employee for conduct while off-duty? Can they establish just cause for terminating an employee for off-duty conduct? 

Terminating an Employee for Off Duty Conduct

Generally speaking, provincially regulated, non-unionised employers in Ontario are entitled to terminate employees for any reason, subject to limited exceptions. Only in the “Rarest of Cases” can a terminated employee be ordered reinstated, including where their termination is a case of reprisal under the Employment Standards Act, Human Rights Code, or Occupational Health and Safety Act, or where the termination is precipitated by a discriminatory motive, contrary to the Human Rights Code. 

Other than in the Rarest of Cases, employers can terminate employees for any reason, upon providing them with reasonable notice, the notice prescribed in a lawful termination clause under their Employment Agreement, pay in lieu of notice, or upon the employee’s culpable behaviour amounting to cause. 

In other words, an employee can be terminated for off-duty conduct, so long as it is not one of the Rarest of Cases. The employer’s only concern will be whether to terminate for cause, meaning the employee will not be entitled to any compensation. If the termination is without cause, the employer must determine how much notice, or pay in lieu of notice, the employee is entitled to.

Termination When the Cause is Off-duty Conduct

The threshold employers must meet in establishing cause for terminating employment is extremely high when the cause involves off-duty conduct. When determining whether an employee’s off-duty conduct has so grossly offended their employer’s interests as to warrant discipline, including summary dismissal, the Court will consider the following criteria:

1. Did the employee’s conduct harm the employer’s reputation?
2. Did the employee’s behaviour render the employee unable to perform his or her duties in a satisfactory manner?
3. Did the employee’s behaviour lead to a refusal, or inability, of other employees to work with him/her?
4. Is the employee guilty of a serious breach of the Criminal Code, adversely affecting the reputation of the employer and its employees?
5. Did the employee’s conduct hinder the employer’s ability to manage its operations and direct its workforce efficiently?

(see Re Millhaven Fibres Ltd. and Oil, Chemical and Atomic Workers I.U. Local 9-670, [1967] OLAA No. 4)

Any one of these criteria may independently result in discipline being warranted. Nonetheless, this is not the end of the inquiry, as the Court will also look at the entirety of the employment relationship to determine whether or not there has been a complete breakdown of the relationship so that it cannot be rehabilitated, amounting to cause for termination. The Court will consider the following mitigating/aggravating factors when deciding whether there is cause:

1. The employee’s years of service
2. The employee’s disciplinary record
3. The level of the employee’s position/level of trust within the employee’s position
4. The response of the employee when confronted with the impugned behaviour
5. The provisions of the Employment Agreement, workplace policies and procedures
6. Any other mitigating or aggravating factors

Since the Courts regard the employment relationship as of vital importance to an employee’s sense of self and regard termination for cause as the “capital punishment of employment law” (see Plester v. Polyone Canada Inc., 2011 ONSC 6068 CanLII), an employee’s termination for cause will be warranted only in response to the most egregious of behaviour and in the rarest of cases.

My Thoughts

There is general presumption (obviously rebuttable) that employees’ personal lives outside of the workplace are none of their employers’ business. Only in the rarest of cases will, and should, an employee’s off-duty conduct be viewed as deserving of an employer’s discipline.

Employers should first conduct a comprehensive investigation to determine the gravity of the conduct and surrounding circumstances, including whether the employee was suffering from an intervening factor beyond his or her immediate control (i.e. alcoholism, drug addiction), causing the employee to act in unintended ways.

Moral of the story? Employers should have comprehensive, carefully drafted, legally enforceable employment agreements, policies, and procedures in place before something happens.

Lawrences’ labour and employment lawyers have considerable experience helping employers take proactive measures to deal with possible employee misconduct while off-duty. These measures include drafting and implementing appropriate and comprehensive employment agreements, policies, and procedures. Where questionable off-duty conduct has occurred, we are regularly engaged to perform comprehensive investigations, advising employers throughout the process, including throughout any employment related litigation.

Damien Buntsma leads Lawrences’ Employment & Labour Group. He represents and advises public and private sector employers, unionized and non-unionized, in all areas of employment and labour law. Damien can be reached at (905) 452-6876 or dbuntsma@lawrences.com.