Blurred Lines

The rise of employee terminations due to off-duty conduct

By Kathryn F. Hordienko

As social media erodes the line between professional and private lives, we see more news stories about employees losing their jobs due to poor choices made outside of the workplace. One offensive sound bite or tweet that goes “viral” could be seen by your employer, putting you in a perilous position.

Terminations due to off-duty conduct appear to be on the rise. While many employees believe that how they behave in their private lives cannot impact their livelihoods, incidents recently portrayed in the media put those beliefs to rest. In certain instances, employers are legally entitled to dismiss employees for conduct outside of the workplace.

In the digital age, social media offers employers a lens into employees’ private lives. This enhanced visibility heightens employers’ risk of reputational harm and complicates the ability to manage their workforce. The consequence is an increased likelihood that employees will be disciplined or dismissed for off-duty conduct.

These employees may be dismissed on a “without cause” basis with a severance package—provided it is done in compliance with human rights legislation. Employees may also be dismissed on a “just cause” basis if their off-duty conduct is deemed sufficiently serious—taking into account resulting harm to the company—to meet the legal threshold for firing without any severance pay owing. Either way, they will have lost their jobs due to their behaviour outside of the workplace.

In Canada, a recent high-profile example of such a termination is Jian Ghomeshi, who was fired by the Canadian Broadcasting Corporation (CBC) in late 2014 for alleged off-duty sexual assaults. Once the facts of these alleged assaults came to light through a video supplied by Mr. Ghomeshi and online statements on his social media accounts, the CBC promptly fired him. Media reports indicated that the CBC terminated Mr. Ghomeshi solely for this off-duty conduct, however, allegations of sexual harassment towards employees within the workplace subsequently came to light and may also have been a factor in the decision to dismiss him.

Another example, which received broad exposure in the media, took place in May 2015 when Shawn Simcoe, a Hydro One employee, defended others who had made a sexually explicit, sexist and derogatory statement towards a female television journalist at a Toronto FC sporting event. The offensive statement was yelling “F*** her right in the P****” on-air into the journalist’s microphone, referenced as FHRITP, a trend that has received traction at sporting events since a YouTube prank in early 2014. Although Mr. Simcoe did not utter the lewd phrase, his on-air defence of the remarks went viral on social media as did his association with Hydro One, and his conduct was deemed sufficient for the company to terminate his employment.

When will an employee’s conduct outside the workplace warrant the ultimate punishment in employment law—termination from employment? In Canada, the presence of one of the following factors may entitle the employer to terminate on a “just cause” basis for off-duty conduct:

1. Does the conduct harm the employer’s reputation?

2. Does the conduct render the employee incapable of performing his or her duties satisfactorily?

3. Does the conduct lead to a refusal, reluctance or inability of other employees to work with him or her?

4. Is the conduct a serious breach of the Criminal Code?

5. Does the conduct make it difficult for the employer to carry out its functions and/or manage its workforce?

All of the factors are nuanced and open to interpretation depending on any fact  situation.

For employees, being aware of the risks to your employment for off-duty behaviour is the first step in safeguarding your livelihood. Knowing that decisions made and actions taken outside of working hours can lead to discipline in the workplace, including losing your job, should make employees more cautious and reflective of their choices. This holds true for both actions, and verbal or written statements.
In the era of smartphone photos and videos, and social media as a whole, the advice to employees respecting their off-duty behaviour is particularly important. Like never before, day-to-day conduct is being documented and distributed at lightning speed. Gone are the days when private lives are kept separate and apart from the workplace. Employees need to recognize that their employers may access and use incidents of poor judgment or indiscretions while off-duty to their detriment.

Employers must be proactive in developing employment contracts and company policies which enhance their ability to discipline and terminate employees for off-duty conduct. Making clear reference in these documents to off-duty conduct, setting forth the company’s expectations and the ability to discipline up to and including termination, will serve the employer well when confronted with an employee’s inappropriate off-duty conduct. This includes implementing a specific detailed policy addressing employees’ handling of social media.
Developing and implementing terms and policies addressing off-duty conduct will not guarantee the ability of employers’ to discipline or terminate employees for just cause, as each set of circumstances is different and the existence of one of the above-listed factors will be necessary. However, creating such safeguards serves to deter inappropriate off-duty conduct which could negatively impact the company, and better equip the employer to handle such incidents when they arise. This in turn, ideally after a thorough investigation has been conducted, will increase the likelihood of a disciplinary measure, including termination, being upheld by the courts.

Employees and employers alike must be cognizant of the effect that off-duty conduct can have on an employment relationship and tread carefully in that regard. Ultimately, when such an incident arises, the competing interests of the employee’s right to privacy versus the employer’s legitimate business interests must be weighed and analyzed to determine whether discipline, including termination, is justified on the facts. Even if the just cause threshold is not met, the employee’s conduct can still lead to dismissal with a severance package—ending their employment—for off-duty conduct which could have been avoided.

Kathryn Hordienko is a lawyer at Fillmore Riley LLP in Winnipeg, Manitoba. She practises primarily in the areas of labour and employment law, which includes providing advice to employers and employees on wrongful dismissals, human rights and privacy issues, occupational safety and health, disciplinary issues and day-to-day matters pertaining to employment law, including drafting and/or review of employer agreements and policies. She also practises in the area of civil litigation. She has been providing advice in these areas of law for over a decade and welcomes the opportunity to work with new clients. She can be reached at (204) 957-8365 and khordienko@fillmoreriley.com.