Relevance of employee activities outside of the workplace
Question: Does an employer have a right or obligation to take action where it becomes aware of an employee’s extreme (and possibly illegal) misconduct outside of work if the misconduct doesn’t have any noticeable effect on the employee’s job?
Answer: The legal rights and obligations of an employer that obtains information about an employee’s off-duty misconduct will depend on the type of behaviour in question, the employee’s position and the nature of the employer’s business.
Generally speaking, what an employee chooses to do outside the workplace is none of the employer’s business. However, an employee’s off-duty conduct may lead to disciplinary action or discharge if it affects the employee’s ability to properly fulfill her duties, negatively impacts the employer’s reputation or otherwise impairs the efficient functioning of the employer’s operations.
In Lévis (Ville) c. Côté, the Supreme Court of Canada upheld the dismissal of a police officer who was convicted of domestic assault and other offences. In making its determination, the top court noted the position of the officer and the adverse impact his conduct would have on public confidence.
Similarly, in Canada (Treasury Board - Solicitor General - Correctional Service) v. Dionne, the Public Service Staff Relations Board ruled the dismissal of a correctional officer charged with cocaine possession was justified, as the charge had a harmful effect on the reputation of the employer, and the employer had proven the employee was in possession of the cocaine.
In Toronto District School Board and CUPE, Local 4400 (XY), Re, on the other hand, the arbitrator considered the appropriateness of an unpaid suspension for a school caretaker who had been arrested for sexual interference and assault of a female under 14 years of age. In finding that the unpaid suspension was unjustified, the arbitrator pointed to the lack of evidence showing the arrest had an adverse impact on the reputation of the employer.
In non-union workplaces, off-duty misconduct may provide grounds for dismissal with cause. In Kelly v. Linamar Corp., for example, the court upheld the dismissal of a manager who had been fired after a local newspaper published information about the employee’s arrest for possession of child pornography.
The employee subsequently pleaded guilty to the offence. The court ruled that although the criminal behaviour occurred when the employee was off-duty and did not involve the use of any employer equipment, the employer had the right to protect its reputation in the community by dismissing the employee.
The issue of whether an employer is obligated to take action where it becomes aware of employee misconduct is highly dependent on the specific nature of the conduct in question. The law, only in rare circumstances, places positive duties on individuals to report behaviour to the authorities. For example, child protection legislation may place a positive duty on an individual to report suspected child abuse or neglect. Where a duty to report is not provided for in statute, however, employers must be careful not to offend applicable privacy legislation.
For more information see:
• Lévis (Ville) c. Côté, 2007 CarswellQue 1926 (S.C.C.).
• Canada (Treasury Board - Solicitor General - Correctional Service) v. Dionne, 2003 CarswellNat 6460 (Can. P.S.S.R.B.).
• Toronto District School Board and CUPE, Local 4400 (XY), Re, 2013 CarswellOnt 8216 (Ont. Arb.).
• Kelly v. Linamar Corp., 2005 CarswellOnt 6611 (Ont. S.C.J.).
