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Workplace hero, off-duty villain?

Off-duty misconduct not always just cause for dismissal — even if it involves having a stolen boat

By Jeffrey R. Smith

Honesty is a top priority for most employers when it comes to employees. If you can’t trust an employee, you can’t have her in the workplace, right? Honesty is considered one of the fundamental parts of the employment relationship, and a breach of honesty is often considered a breach of the employment relationship.

There are different types of dishonesty, but the ones considered most detrimental to the employment relationship are lying and theft. Lying about misconduct is often treated more seriously than the misconduct itself by both employers and courts and arbitrators hearing dismissal cases. And when it comes to theft — well, an employee who steals from an employer can usually expect to get fired.

Theft doesn’t only cast serious doubt on being able to trust an employee, but it can also cast the employer in a bad light if the public finds out. This is especially important for employers that need a high level of trust from the public, such as firefighters. If a firefighter is found to be involved in theft, then it shouldn’t be surprising that the firefighter’s job is extinguished. But what if the theft doesn’t involve the employer at all? Is the risk to the reputation enough to warrant dismissal?

Take the case of the British Columbia firefighter — with 11 years of service and no disciplinary record — who bought a boat from another firefighter for about one-third of what the boat was actually worth. Several months later, police contacted the firefighter and asked to visit his property to investigate a tip on a stolen boat. Immediately after the call, the firefighter towed the boat away. However, he was caught by surveillance and arrested.

The firefighter wasn’t straight with police about how he acquired the boat and how much he paid for it. He later admitted how he obtained it, but claimed he didn’t know it was stolen — though he said he had doubts about it at the time.

The firefighter’s municipal employer heard about the arrest and investigated. When interviewed, the firefighter said it was a “grey area” regarding whether he knew if the boat was stolen.

Eventually, a court found the firefighter knew the boat was stolen and was convicted. News of the case was widespread in the community and the employer fired the firefighter for dishonesty, lack of judgment, and the potential harm to its reputation from the firefighter’s actions.

However, an arbitrator found there was no direct link between the firefighter’s actions and his job. Though it raised questions about the firefighter’s honesty, there was no reason the firefighter couldn’t be trusted to perform firefighting duties. The arbitrator also found it was most likely an isolated incident by an employee with a good record, giving him some leeway and reinstating him to his job.

Even though the firefighter was convicted of having stolen property — and showing a tremendous lack of judgment by  not following his gut regarding a deal that was too good to be true — dismissal was apparently too harsh. The municipal employer understandably was concerned about its reputation in the community, but since the firefighter’s job had nothing to do with financial temptation or greed, its reputation wasn’t seriously damaged, according to the arbitrator.

And since the whole incident happened off-duty and was unrelated to the firefighter’s job, it didn’t prove he couldn’t do his job: Prince George and Prince George Firefighters, Local 1372 (Williams), Re,  2016 CarswellBC 2591 (B.C. Arb.).

Employers that have employees involved in off-duty trouble that result in criminal charges shouldn’t assume they can fire the employee right off the bat. This above decision, along with other previous cases, have established that the off-duty misconduct has to cast doubt on the employee’s ability to do his job and cause definite harm to the employer’s reputation — and therefore its business. If either of those things aren’t evident, it may not be enough to reach the high bar needed for just cause for dismissal.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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