Employee response to employee's violent behaviour outside of work
Question: What legal obligations or liabilities would an employer have if it becomes aware of domestic or other types of violence perpetrated by an employee while off duty? Can the employer use such off-duty behaviour as reason for discipline or dismissal?
Answer: Off-duty employee conduct has become very newsworthy lately, particularly in the face of certain high profile media cases. Much has been said about what an employer can and cannot do, and what circumstances they are permitted to take action against that employee. Employers are placed in a difficult position when an employee engages in unbecoming off-duty conduct. They not only have to worry about the backlash from the conduct itself, but must also be concerned about possible liability if they decide to discipline or terminate the employee.
The legal threshold in proving cause in these circumstances is a high one. In order to justify a termination for off-duty conduct, the employer must demonstrate real business harm that could result from the conduct. The leading case, Millhaven Fibres Ltd., sets out the following requirements that an employer must establish to justify its reason to discipline an employee for conduct outside the workplace:
• The conduct of the employee harms the employer's reputation or product
• The employee's behaviour renders the employee unable to perform her duties satisfactorily
• The employee's behaviour leads to refusal, reluctance or inability of the other employees to work with her
• The employee has been guilty of a serious breach of the Criminal Code, thus rendering her conduct injurious to the general reputation of the company and its employees
• The conduct of the employee places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
While it can be difficult for an employer to prove just cause to terminate an employee who has not been convicted of a crime, the Ontario decision in Kelly v. Linamar Corporation offers helpful commentary for employers.
In the Kelly case, Linamar terminated Kelly's employment for cause when it learned that he had been charged with possession of child pornography. Despite having no history of misconduct, and the fact that Kelly was viewed to be a well-respected and trusted employee, the court upheld the employer's decision to terminate. The court agreed with Linamar that as Kelly was required to work with the general public, manage, instruct and discipline employees working under him, and interact collegially with many peers at the management level, he had a duty to ensure that his conduct did not adversely impact any of those activities. By permitting himself to be placed in the position where he would be charged with possession of child pornography, the court found that Kelly had failed to discharge that duty to his employer.
While the court went on to state that every case must be considered on its own unique facts, it highlighted several important factors to consider when deciding to terminate an employee for cause for off-conduct duty:
• The degree of responsibility exercised by the employee
• The company's notoriety and the degree to which, if at all, its reputation in the community will be likely to be affected
• Whether company equipment was utilized in the misconduct.
What factored heavily in the Kelly decision was the fact that Linamar was a major employer in its community and had placed special emphasis on its charitable activities in the community directed towards young children.
It is also important to note that employers also have responsibilities to their employees, as they have a duty to provide a safe workplace. Under Ontario's Occupational Health and Safety Act and the recent amendment under Bill 168, employers who are aware, or who should reasonably be aware, that domestic violence may occur in the workplace must take reasonable precautions to protect an employee from domestic violence. Off-duty conduct by an employee which may breach this obligation may result in further liability to an employer.
For more information see:
• Millhaven Fibres Ltd. ([1967] OLAA No. 4.
• Kelly v. Linamar Corporation, 2005 CarswellOnt 6611 (Ont. S.C.J.).
