Two employees involved in altercations outside of the workplace
Question: If two employees get into a fight outside of work while off-duty, does the employer have an obligation to investigate or take any action other than instructing the employees to act professionally while at work?
Answer: Discipline is warranted if the fight can be shown to be connected to the workplace and it harms the employer’s interests.
The general rule a is that an employer has no interest in the activities of employees outside of working hours and away from the employer’s business. However, an exception to this general rule exists when an employee’s off-duty conduct can be shown to have a negative impact on the employer’s operations.
In order to discipline an employee for off-duty conduct, an employer must prove that:
• The employee engaged in misconduct
• There is a “real and substantial connection” (a “nexus”) between the off-duty conduct and the workplace
• The employer’s interests were harmed by the employee’s off-duty actions.
To prove misconduct, an employer will, in most cases, have to conduct an investigation. Such an investigation should, at minimum, examine both the facts and circumstances surrounding the conduct and provide the employee with an opportunity to explain his behavior. Failure to conduct an investigation may prejudice an employer’s position at a later date when attempting to justify any discipline imposed.
If misconduct is proven, the employer must then establish a “real and substantial connection” between the employee’s conduct and the employer’s interests. This will depend on not only the nature of the employee’s duties and the employer’s expectations for the employee’s conduct, but also on the history and quality of the employee’s conduct, the nature and seriousness of the employee’s conduct, and the impact of the employee’s conduct on the employer’s business and reputation. If such connections cannot be made, discipline for off-duty conduct will not be justified.
If misconduct is proven and a connection is established, the employer must demonstrate that the employee’s behaviour has one or more of the following consequences:
• It seriously harms the employer’s reputation in the marketplace or with the public
• It renders the employee unable to perform his duties satisfactorily
• It leads to the refusal, reluctance or inability of co-workers and colleagues to work with the employee in question
• It results in the employee being charged or convicted of a serious breach of the Criminal Code, thus rendering his conduct injurious to the general reputation of the company and its employees
• It creates difficulty for the employer in properly carrying out its functions or efficiently managing its workforce.
If one or more of these criteria apply, and in the case of a fight, if the consequence of the fight is that employees are not able to work together and this interferes with the business, then it may be justifiable to discipline the employees involved for their off-duty conduct.
Provinces with violence in the workplace policies – Risk assessment
We also note that in some provinces, such as British Columbia and Ontario, provincial legislation requires employers to implement violence in the workplace policies. For instance, in British Columbia, sections of the Occupational Health and Safety Regulation address workers’ rights to be protected from work-related threats and assaults. These sections of the regulation require an employer to determine if there is a risk of violence in the workplace and to set up procedures to eliminate or minimize such risk if a risk exists.
Because the fight between the two employees occurred outside of work and while off-duty, it is unlikely that a workplace violence policy would be applicable to the incident. However, if a risk assessment indicates that there is a risk of violence occurring at work because of the off-duty fight, then the violence in the workplace policy may be triggered and the employer is obligated to take steps to eliminate or minimize such risk.
