When does off-duty conduct matter?

What happens outside of work, stays outside of work — but not always. Bad behaviour by employees while off-duty and after hours can affect the workplace.

“Employers don't have jurisdiction or authority over [employees’] personal lives while they're outside of work, but if their conduct engages and implicates the company that they work for, impacts the employer’s ability to run its business, or injures the company's reputation, then there can be consequences,” says Shannon Sproule, an employment lawyer at Turnpenny Milne in Toronto.

It’s a concept that’s been borne out by court decisions over the past several years, making it possible for employers to take action against employees who behave badly outside of work when it can potentially carry over into their workplace jurisdiction.

It can be a tricky area for employers to investigate and consider discipline, but the consequences of not doing so where negative effects can trickle into the workplace can be significant, according to Sproule.

“When off-duty conduct impacts other employees’ ability to work with that worker - for example, in cases where you know there is off-duty sexual harassment, if it impacts a female co-worker’s ability to feel safe working around that worker, then that is relevant,” she says.

Connection to employer

The nature of the misconduct and where it takes place can be a factor as well. An employer’s reputation is more likely to be affected by employee behaviour that occurs in a public place and can be recorded to be circulated on the internet or broadcast – especially if the employee is identified as being connected to the employer.

“When people are out in public and engaging in a way that's easily viewed by members of the public, and the conduct that is so egregious that it actually impacts the employer’s reputation, that’s something that the employer can act on,” says Sproule. “In this day and age with social media, they're looking more at how the public is also looking at [employees’ public behaviour] and how it's impacting their reputation.”

Certain professions have a higher standard of conduct both at work and in general, and damage to an employer’s reputation can be more serious in those lines of work. Sproule points to teachers as an example of an occupation with a higher bar for off-duty conduct.

“With teachers, it's not just about the business interest [of the employer], but it's also about the way in which the off-duty conduct actually could impact a school or the students’ ability to trust the teacher,” she says. “So it's deeper than simply looking at the reputation of the employer, it's also looking at how the off-duty conduct can actually impact the ability to fulfill a role.”

The teacher example was demonstrated recently in Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Association, 2023 CanLII 70469, in which an Ontario teacher was fired – reduced by the arbitrator to a one-month suspension – for getting into a verbal altercation and a short physical fight at a Starbucks. The incident was partly recorded and shared online.

The arbitrator in that case noted that teachers have a high standard of conduct and the school board’s reputation was put at risk by the teacher’s actions. Interestingly, the incident happened during work hours and the teacher had just gone for a coffee break. The arbitrator said that the worker should have been focused on her duties as a teacher.

Policies on off-duty conduct

Sproule points to a recent arbitration decision in Alberta – Corporation of the City of Calgary v. Amalgamated Transit Union, Local 583, 2023 CanLII 20867 - in which the arbitrator upheld the dismissal of a male worker for sexually harassing a female co-worker outside of work and after hours. In that case, the employer had a labour relations policy with a section that outlined examples of off-duty behaviour that could lead to discipline or discharge.

“In that case, the employer was actually able to point to a policy where they stated what they expected from employees in terms of off-duty conduct,” says Sproule. “An employer should definitely have a policy in place, point to it, and make sure that they're acting on it.”

When off-duty misconduct directly involves another employee, such as harassment like in the City of Calgary case or derogatory public posts on social media, the effects on the workplace are easier to define. As such, employers should treat it as if it occurred at the workplace, according to Sproule.

“If it's between co-workers, there’s an obligation to treat it as if it's a standard workplace violation, to take it seriously, and to look further into what happened,” she says. “It's really an extension of the workplace when you have two co-workers together, because [harassment such as in the Calgary case] impacts the co-worker’s ability to do her job.”

“Whether it’s on Facebook, at a party, or wherever it is, if there's a complaint by an employee that another employee has made them uncomfortable, or violated the law or the employer’s policy, or harassed them outside of work hours, the employer has the same obligation to treat it seriously and investigate it promptly,” adds Sproule.

Options without just cause

However, there is a high bar for just cause for dismissal. If an employer doesn’t think it has enough to dismiss an employee for off-duty behaviour, there are other options that can distance the employer from the employee’s actions outside of work.

“It might be the case that, while you want to show clients or the public that you take this conduct seriously and it's not reflective of your company's reputation, you just might not have the evidence required to justify dismissing the employee,” says Sproule. “You might have to give them a package [without cause dismissal] or discipline them, while still balancing your need to signal to the public that the employee’s off-duty conduct is not reflective of your company's values.”

So how can employers address the gray area of off-duty conduct when their reputation and workplace culture can be at stake? They can start with policies that set out reasonable expectations and boundaries for employees, helping to establish a more definable standard for what can cross the line, says Sproule.

“It’s a best practice to actually have a policy in place that employees are informed of, review and understand it, and then actually take the policy seriously,” she says. “That can even include what's expected when you're on company social media accounts and when posting on your own social media accounts.

“So if there is off-duty misconduct that breaches a policy, act on it in accordance with the policy and make sure your employees actually understand what you view as off-duty misconduct, and that's seen as relevant to their roles as employees.”

Employee misconduct outside of the workplace shouldn’t be ignored if there is the potential for negative effects at work, according to Sproule.

“At the end of the day, don't just say ‘This happened while the employee wasn't at work so we're not going to look at it’ - you still have to investigate it,” she says. “And once you investigate it, you can determine what happened, and that would allow you to actually make a decision as to what should be done under the circumstances.”