How employees act within the constraints of the working day has, historically, been the main concern of HR whilst we can monitor staff inside their allocated hours, doing so outside of these times could be deemed unnecessary and even illegal.
And yet, recently we have seen instances of employees being fired from their roles for ‘infringements’ which they committed outside of work. Earlier this year, Juli Briskman was let go from her role with a government contractor after she was photographed swearing at US President Donald Trump.
Similarly, after the race rallies in Charlottesville, US, several workers were fired from their roles after they were ‘outed’ as members of ‘Unite the Right’.
So, where does this leave Canadian employees and employers? We spoke to leading expert in employment law, Ryan Watkins of Whitten & Lublin, who gave us his insights into the controversial topic.
“It is important to note that an employer can dismiss an employee for almost any reason or no specific reason at all,” he explained. “Hence, an employee could dismiss an employee simply because that employee did not like the employer’s favourite hockey team (as silly as that sounds). The caveat to this is that an employer cannot dismiss an employee for discriminatory reasons.
“Human rights legislation across Canada protects employees from being discriminated against based on human rights grounds. So, the short answer is yes, an employee can be fired for something they did outside of work on a without cause basis. The employer would only be required to provide the employee with sufficient notice or pay in lieu of notice.”
Watkins goes on to explain that the real questions should be ‘can an employee be fired for cause for something they did outside of work?’ He added that he always counsels clients that “cause is deemed the ‘capital punishment’ of employment law, and to be frank, can be very hard to prove”.
“Generally,” Watkins continued, “in order to prove cause for off-duty conduct, an employer would need to show: the conduct of the employee harms the employer’s reputation; the employee’s behaviour renders the employee unable to perform his duties; the employee’s behaviour leads to other employees refusing to work with him/her; and continuing to employ the employee will cause the employer difficulty in directing its workforce.
“With that being said, there is at least one recent case where a worker was arrested at the employer’s facility and was charged with two counts of sexual assault against minors. A female employee raised concerns about working in close proximity with this individual. The employer dismissed the worker for cause based on the sexual assault charges. The dismissed worker sued for wrongful dismissal.
“The court found that criminal charges for off-duty conduct alone are not grounds to dismiss an employee for cause. Consequently, the employer was ordered to pay wrongful dismissal damages.
“The lesson here is that both employees and employers need to be cognizant of the implications of improper off-duty conduct as it relates to the employment relationship.”