As an employment lawyer, I thought I’d heard it all when it comes to employees (allegedly) behaving badly. However, in the last month, the news has simmered with stories about employees (and quasi-employees, like NFL players) behaving in ways that shock even the most seasoned employment lawyer. Beyond the personal shock that we have all experienced in reacting to these stories, what makes the Ray Rice, Des Hague and Adrian Peterson situations interesting from an employment law perspective is that they all involve off-duty misconduct that has, to different degrees, resulted in consequences in the workplace.

Even in serious cases of misconduct that occur at work, employers must take care to ensure that they have properly investigated the incident and, in some cases, warned employees before imposing discipline – particularly if that discipline is termination for just cause.

But what about employees who are charged with crimes or engage in inappropriate behaviour outside the workplace? Can an employer terminate employment for misconduct that happens while the employee is off-duty? Or is that activity off-limits?

Although there is limited case law on the subject, the short answer is that employers can impose consequences for their employees’ off-duty misconduct. Even further, courts have held that an employee’s off-duty misconduct may constitute just cause for termination where that misconduct “is incompatible with the due and faithful discharge of his or her duty to the employer”, including where such misconduct is “prejudicial to or is likely to be prejudicial to the interests or reputation of the employer.” (Harrop v. Markham Stouffville Hospital, 1995 CanLII 7295 (ON SC) at pp. 230-231).

Employers must assess, on the particular facts of each case, the seriousness of the misconduct. Whether the misconduct is on-duty or off-duty, courts are loath to permit an employer to rely on a single incident of misconduct (as opposed to an ongoing pattern or multiple incidents) as just cause. However, the courts have held that where the misconduct “interferes with and prejudices the safe and proper conduct of the business of the employer, and has serious consequences…a single incident is sufficient to justify dismissal.”

It cannot be stressed enough that each case must be assessed on its own merits. Whereas an off-duty criminal charge may constitute just cause for termination in one case, it may not in another. Employers must consider the seriousness of the misconduct and its impact (both real and potential) on the workplace.

By way of very general guidelines, the following types of off-duty misdeeds may (but not necessarily will) give rise to just cause for termination:

• where there are identifiable negative consequences on the work environment (e.g. a supervisor at a trucking company, who is responsible for monitoring drivers, has admitted to multiple reckless driving offences and thus has lost credibility as a supervisor);
• where the consequences of the misconduct hinder the employee from performing his or her job duties (e.g. as part of his temporary bail conditions, an IT employee is not permitted to access a computer without supervision); and
• where the employer’s reputation will suffer permanent and irreparable harm in the community by continuing to employ the employee (e.g. a client and supplier-facing manager at an employer that has a “special emphasis on philanthropy directed towards young children” is charged with possessing child pornography and the charge is reported in the media). {Kelly v. Linamar Corporation, 2005 CanLII 42487 (ON SC)}

As in any disciplinary situation, employers must also consider the employee’s history, his or her length of service, any Human Rights Code issues, the employer’s past practice regarding off-duty misconduct, and other workplace-specific factors before taking any punitive steps.

Tips for Employers

There is no one-size-fits-all approach to dealing with off-duty misconduct and its impact on the workplace; but the following tips can be helpful for employers who face these situations:

1. No Double Jeopardy: As Roger Goodell can attest, an employer should conduct thorough, impartial investigations and make disciplinary decisions with the full spectrum of facts and sound legal advice at their disposal. It is difficult and, in some cases impossible, to “step up” the discipline after it has already been imposed.
2. Good PR vs. Costly Legal Implications: In response to public outcry following a video showing its CEO, Des Hague, allegedly abusing a dog, Centreplate placed Mr. Hague on an indefinite suspension and ordered him to donate $100,000 to charity. Mr. Hague ultimately resigned from his position, likely as part of an agreement with Centreplate, and so the legal implications were neutralized. Employers should recognize that although it may be desirable from a public relations perspective to come down hard on a misbehaving employee, this will not always be a legally sound course of action. An employer’s knee-jerk reaction to appease public outrage can lead to an expensive wrongful dismissal claim by the employee, which can, in itself, attract additional negative PR.
3. The Spectrum of Options: Termination is not the only option. Think outside the conventional box of disciplinary options when it comes to responding to an employee’s off-duty transgression. Compelling a public apology or a donation to an appropriate charity may be a more proportionate way to “chasten” the employee.

Dealing with workplace misconduct is never an easy job, but addressing off-duty misconduct can be even trickier. Even employment lawyers like me have learned some new lessons from the headlines over the last month, about what not to do with troubled employees.

Jennifer Heath