'The employer has to establish that whatever the worker did outside of work somehow negatively impacts his work'
A federal worker who was fired after a criminal conviction for off-duty misconduct should be reinstated, according to the Federal Public Sector Labour Relations and Employment Board.
“The presumption is that what you do at work is subject to discipline, but once you clock out, your life is your own,” says Michael Penner, a Victoria-based labour and employment lawyer with Levitt LLP.
“So, at the outset, the employer has to establish that whatever the worker did outside of work somehow negatively impacts his work or the work environment – until it crosses that threshold, the off-duty conduct is no business of theirs.”
The worker began employment in 2009 with the Department of National Defence (DND). He was subject to the Code of Values and Ethics for the DND and the Canadian Armed Forces. He became an electronic systems specialist (ESS) in 2015.
The worker’s position required security clearance, as he worked on the electronic systems and equipment onboard navy vessels in the support systems shop.
In August 2014, the 13-year-old daughter of the worker’s common law partner told her mother about inappropriate behaviour by the worker. The mother reported it to the police and the worker admitted to the incident. The police decided there wasn’t enough evidence to pursue criminal charges.
Criminal charges
In September, after the worker moved out, his ex-partner’s daughter reported additional incidents. The daughter’s friend also reported inappropriate behaviour by the worker.
The police interviewed the worker again and he admitted to the incidents, although he denied inappropriate intent. The police charged him with two counts of sexual interference under the Criminal Code.
The worker reported the charges to DND, accepting full responsibility.
The worker was assessed by a counsellor to be a low risk to reoffend. He pled guilty and in 2015 was sentenced to 180 days in custody plus 24 months’ probation.
When the worker was released, DND considered whether it could bring the worker back. It considered factors set out in Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, and Millhaven Fibres Ltd., Re, 1967 CanLII 1038, which set out when an employer may discipline an employee for off-duty conduct – whether the worker’s conduct harmed its reputation, whether he was unable to perform his duties satisfactorily, was he was guilty of a serious breach of the Criminal Code that rendered his conduct harmful to its reputation, could other employees work with him, and could it efficiently manage its operations after his off-duty misconduct.
No loss of reputation
Management met with other ESS’s, with two saying they felt betrayed by the worker’s behaviour, two saying they were upset but would work with him if necessary, and two feeling that he should be given a second chance. Based on this and the fact that the worker had no prior discipline, was considered a good worker, and his security clearance hadn’t been revoked, DND elected to bring the worker back. It also felt it had suffered no loss of reputation, as the worker hadn’t been publicly identified as a DND employee.
The worker returned to work in March 2016. There were no issues and, as before, he was considered an excellent technician.
However, in October 2018, the worker was charged with two counts under the Criminal Code related to more incidents during the same period and with the same girls as his previous conviction. On Feb. 6, 2019, he informed his superior of the charges, which he said were related to new allegation during the same period as his previous conviction.
There was no coverage in the media of the case, except for a short reference in the local paper that didn’t mention DND as the worker’s employer.
The worker’s security clearance was reviewed, but it wasn’t revoked. On March 6, the worker provided a letter from his supervisor supporting him as an employee. Later, the program leader for a mental health an addictions services program provided a letter saying that the worker had been working to change and was forthright about his behaviour, calling him a “treatment success.”
Stricter code of conduct
The worker was told that there was a new commanding officer and the rules of conduct and ethics policy were stricter than when his previous conviction happened – partly due to a new initiative stemming from high-profile reports of sexual misconduct in the Canadian Armed Forces.
The worker was convicted of the new charges and sentenced to serve eight months in custody and 30 months’ probation.
When the worker was released, DND terminated his employment for breaching the Standards of Code and code of ethics. The termination letter stated that his “willful behaviour” wouldn’t be condoned or tolerated.
The union grieved the termination, arguing that the incidents related to the 2019 conviction happened at the same time and to the same people as the 2016 conviction, which DND determined didn’t warrant termination. Since those events, the worker had done his time and rehabilitated himself, and the change in DND’s mindset was the only reason for the termination, the union said.
In 2023, before the hearing before the board, DND polled the worker’s co-workers informally. Three had no issue with the working coming back as he had “done his time,” while the two newest members, who hadn’t worked with him, expressed reluctance.
Off-duty conduct unrelated to work
“These convictions were very specific to inappropriate behavior towards minors, but the worker had no interaction with minors at his work and he wasn’t a frontline customer service person,” says Penner. “And there was no public clamoring or media interest that would have created a reputational effect for the employer to have this guy continuing to work.”
The board considered the principles established in Millhaven Fibres and found that the worker’s off-duty conduct didn’t have a demonstrable impact on the DND’s operations, nor did it cause harm to its reputation. While some co-workers expressed concerns, the worker had returned to work following the earlier conviction without incident, said the board, noting that the worker acknowledged and regretted his actions, he hadn’t repeated them since his first conviction, and he wouldn’t be working with minors.
“Anytime you're dealing with off-duty conduct and whether it justifies workplace discipline, we have this longstanding five-part test set out in the Millhaven Fibres case,” says Penner. “The employer heavily relied on that test, but the only question the board felt was important was, did this worker’s off-duty conduct have an impact on the employer’s operations?”
“The board aggregated the thought behind Millhaven Fibres and used it as a metric, basically finding the employer wanting in that argument,” adds Penner.
The board also found that DND’s reliance on the code of conduct and ethical policies set broad expectations but didn’t, on their own, justify dismissal. Otherwise, DND would have investigated and disciplined the worker after the earlier conviction, the board said.
Justification for discipline
If an employer wants to rely on a policy to justify imposing discipline, there are basic rules that apply - every employee must know what the policy is, they must know the consequences of their failure to abide by that policy, and the policy must be consistently enforced, says Penner.
“There was a recent initiative that treated this type of conduct more seriously, but the conduct itself happened before the new policy was put in place,” he says. “Any arbitrator is going to be hesitant to retroactively apply a policy to events that were precipitated well before the policy existed, because you're not dealing with an informed employee.”
“Had the worker reoffended after this policy was put in place, [DND] could absolutely rely on that policy to say, ‘You knew that expectations for conduct went beyond the four walls of your job and this conduct clearly is in breach of our expectations,’” adds Penner.
The board determined that termination wasn’t justified, ordering DND to reinstate the worker without retroactive pay but with no loss of seniority.
“Ultimately, the facts led the board to determine that it hadn’t seen any compelling evidence that this guy's off-duty conduct had an impact on the employer or that somehow their operations were compromised by virtue of him having these convictions and continuing to work.”
It was a difficult situation for the employer, particularly when it had a mandate to be more vigilant about sexual misconduct, says Penner.
“It’s understandable why [DND] did what they did, but at the end of the day, to the extent that it performed its own investigation and due diligence, it really didn't connect the dots,” he says. “It may have felt that it just needed to make the decision and recognized that it may likely be reversed - but there's limited utility in basically doing it for optics.”
