Employer jurisdiction when employees carry disputes outside work
Question: If an employee’s off-duty behaviour makes other employees uncomfortable to work with him, does the employer have an obligation to do anything? What if two employees had an altercation outside work that would have been harassment if it had happened in the workplace?
Answer: Generally speaking, an employer has no authority over what employees do on their own time, unless their off-duty conduct affects the employer’s legitimate business interests. However, an employer has an obligation to provide a safe work environment that is free from discrimination, violence, bullying and harassment, and it may have an obligation to act if an employee’s off-duty behaviour contravenes the employer’s policies and/or the applicable human rights or occupational health and safety laws.
Courts and tribunals have ruled that the “workplace” can extend well beyond an employer’s office or plant, and can include any location where employees perform work on behalf of the employer, or that is otherwise under the employer’s control. For example, the workplace can include remote worksites, customer premises, conferences and company social gatherings. Also, an employee’s online activities can constitute workplace conduct that an employer may have a right or obligation to regulate.
Even conduct that clearly occurs outside the workplace and on an employee’s personal time may engage the employer’s legitimate business interests, if the conduct has a negative effect on the work environment, or impacts the employer’s ability to manage its operations effectively.
Where an employer receives a complaint, report or other information suggesting that an employee’s off-duty conduct may be affecting other workers or the employer’s business interests, the employer should take prompt steps to find out what has happened, and determine whether the employer has a right or duty to take action. If the complaint involves allegations of discrimination, bullying or harassment, the employer may have an obligation under its policies or the law to conduct a formal investigation. In all cases, the employer’s inquiries or investigation should be conducted as promptly as possible, and in a manner that is thorough, impartial, and fair to all concerned.
In the situation presented by your first question, a claim by employees that they feel “uncomfortable” working with a coworker because of his off-duty behaviour is a vague assertion that would require further investigation before you could determine whether there was a need to take action. What are the particulars of the off-duty conduct the co-worker is alleged to have engaged in? Why is that conduct making the complainants uncomfortable working with him? Is there a sufficient connection to the workplace that the employer should get involved? And before taking any action, what does the co-worker have to say in response to the complaints against him?
By following up promptly and diligently on this complaint, you can ensure that your organization is satisfying its legal obligation to provide an environment that is free from discrimination, bullying and harassment. The process will also provide you with an opportunity to reinforce your respectful workplace policies.
The answer to your second question will also depend on the outcome of your fact-finding inquiries regarding the complaint. What are the details and context of the altercation that occurred between the employees outside work? Could that altercation have an adverse impact on the work environment or your organization’s business? In a situation like this, an employer should be careful to ensure that it is not venturing into areas that fall outside its jurisdiction. If two employees have had an argument or even a fight on their own time at a location outside the workplace — such as a bar or somebody’s home — it may not be appropriate or necessary for the employer to take any action, apart from telling the employees they must not bring their dispute into the workplace and must treat one another in a respectful and professional manner while at work.
Off-duty misconduct can provide grounds for disciplinary action or even discharge, if the employee’s misconduct had an adverse impact on the workplace, or was otherwise prejudicial to the business interests or reputation of the employer. While evidence that co-workers have refused to work with the employee because of off-duty misconduct may be relevant in a discipline or discharge case, arbitrators have emphasized that employability is not based on popularity, and have required reliable objective evidence of actual or potential injury or harm in such a situation. This underscores the need for an employer to conduct a proper investigation into the off-duty conduct and its impact on the workplace, before it proceeds to take action.
Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected].
