Behaving badly at the softball game (Toughest HR Question)

What are employer’s liability concerns, disciplinary options when employees are off-duty?
By Brian Johnson
|Canadian HR Reporter|Last Updated: 04/07/2014

Question: How much does an employee’s conduct away from the workplace, but related to the employer — such as playing on a company-sponsored softball team — fall under the employer’s jurisdiction? Can an employer discipline the employee or be liable for any misconduct in such circumstances?

Answer: It is generally recognized that an employee’s off-duty conduct can attract discipline if the conduct interferes with and prejudices the employer’s business interests and operations, or its public reputation.

There are a number of cases in Canada where summary dismissal was found justifiable for off-duty conduct:

• A bank teller who was having an extracurricular relationship with a bank robber, thereby jeopardizing the employer’s interests. (Canadian Imperial Bank of Commerce v. Boisvert.)

• A social worker who did not reveal to her employer that she had become involved with a man convicted of a sexual offence who was receiving sexual abuse counselling through the employer. (Smith v. Kamloops & District Elizabeth Fry Society.)

• An employee at one of the City of Guelph’s largest employers — which actively promoted and contributed to the community and elementary school-aged children’s programs — who was charged with accessing and possessing child pornography. (Kelly v. Linamar Corp.)

We know that what’s considered the “workplace” may extend to company-sponsored or supported social events held during non-working hours. Employer codes of conduct often address that.

In such circumstances, an employee’s off-duty conduct that is employer-related can justify discharge more easily than true off-duty conduct.

Hockey tournament highlights

An interesting 1981 decision involved an employer-sponsored hockey tournament. As it turned out, the off-duty conduct, although having an impact on the employer, was not sufficient to uphold the discharge.

In Harris v. Eastern Provincial Airways (1963) Ltd., a 30-year-old employee claimed wrongful dismissal because of incidents that occurred during his off-duty time. Eastern Provincial employees organized a hockey tournament with teams and guests invited from several other operations of Eastern Provincial.

The company made a financial contribution and provided transportation. In all other respects, the activity was organized by a committee of employees.

This employee consumed excessive amounts of alcohol and was jumping up and down on a hotel bed with a co-worker. The bed broke.

Later, the employee was in the vicinity of the hotel where a glass door was broken, but was not an active participant. The worker also stepped in to help a co-worker during a fight.

While the employer dismissed the employee, the court concluded the misconduct was isolated and termination was too heavy-handed:

“While the (employer) had cause to be annoyed with the (worker) for not setting a better example to his fellow employees, his misconduct did not diminish his ability to fulfill the conditions of his employment as station manager, duly and faithfully, nor was it, to any appreciable extent, prejudicial to the interests or reputation of the defendant,” said the court. “He should not have been responsible for the breaking of the glass or the fighting. The rest did not justify his dismissal without notice.”

Protecting your reputation

What is the best way to protect an employer’s public reputation or business interests in these cases? In some cases, such as Kelly v. Linamar, no policy would be required to uphold termination if the employer can show the employee’s activity could harm its public reputation or business interests.

Generally speaking, a policy setting forth what is expected of employees at company-sponsored events, or a code of conduct that clearly spells out expectations and disciplinary consequences, may help to deter improper behaviour or provide some force to the disciplinary response if improper behaviour occurs.

For more information see:

Canadian Imperial Bank of Commerce v. Boisvert, 1986 CarswellNat 206 (Fed. C.A.).

Smith v. Kamloops & District Elizabeth Fry Society, 1995 CarswellBC 162 (B.C. S.C.).

Kelly v. Linamar Corp., 2005 CarswellOnt 6611 (Ont. S.C.J.).

Harris v. Eastern Provincial Airways (1963) Ltd., 1981 Carswell-Nfld 164 (Nfld. T.D.).

Brian Johnston is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com or, for more information, visit www.stewart mckelvey.com.

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