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Going off the rails when off duty

An employee's behaviour outside of the workplace can sometimes be a cause for concern for the employer

By Jeffrey R. Smith

People like to have a good balance between work and their personal life, and employers who are concerned with recruiting and retaining good employees try to make sure employees have that balance. Usually this means work doesn’t interfere with home life, and vice versa.

But when it comes to an employee’s behaviour outside the workplace, there can be a bit of a grey area.

In theory, what an employee does when she’s away from work isn’t the business of anybody at work. And often an employer may not care or want to know what its employees are up to outside of working hours. But what if an employee is up to no good and is identified as an employee of the company? Sometimes this can mean the employer’s name comes up and gets associated with the employee’s behaviour.

And if that behaviour is bad enough to call into question the employee’s trustworthiness or is related in any way to her job, the employer may even have just cause to dismiss the employee. For example, certain individuals involved in the Vancouver hockey riots of 2011 were fired from their jobs after they were identified in photographs as employees of particular companies. There have also been cases where penitentiary or security guards have been let go because of involvement with criminal activities.

Last year, an Ontario transit worker was involved in an incident with a member of the public. The worker was accused of making obscene gestures, yelling at and following a woman into a store. The woman felt threatened by this behaviour. Though the worker wasn’t at work, he was identified as a transit employee and the woman complained to the employer about his behaviour. The worker happened to be on a last chance agreement that stipulated he must avoid aggressive and threatening conduct at work. The employer took the worker’s reported behaviour to be a violation of the agreement and fired him.

However, an arbitrator found that the last chance agreement only referred to his behaviour in the workplace and the reported incident occurred outside its jurisdiction. Since the last chance agreement — and the employer’s workplace violence policy and code of conduct — specifically referred to workplace behaviour, the worker’s actions could not be used in relation to the last chance agreement as a reason for dismissal. But was the behaviour completely unrelated to the workplace?

The worker was identified as a transit employee and the victim complained to the employer about him. This meant the employer was associated with the bad behaviour, which could potentially harm its reputation — and reputation is important for an organization that serves the public. Also, the worker’s behaviour was similar to previous misconduct at work that obviously led to the last chance agreement. Wouldn’t an incident like this indicate the worker hadn’t reformed and was still prone to the type of behaviour that got him in trouble at work?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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