Harassment between employees outside of the workplace

Can an employer police off-duty harassment and misconduct?

Brian Johnston

Question: Should an employer treat harassment between employees that occurred away from work and outside of work hours similarly to harassment in the workplace?

Answer: This is a difficult question because employers do not have direct control outside of work. The first question is whether the employer has policies on off-duty conduct or harassment, and whether the conduct could spill over to the workplace.

Most policies tend to be limited to the workplace. If there is no off-duty policy, the issue becomes whether the employee has done something that would impact the work relationship or environment. It is an implied term of the contract of employment that the employee will not do anything prejudicial to the employer’s interests or reputation. Thus, an employee will not be free from scrutiny for conduct which occurs off-duty, if it affects the employer’s reputation or interests.

Generally, courts will look for the following to assess the appropriateness of disciplinary action for off-duty conduct:

• Whether the employee’s conduct harms the employer’s reputation or interests

• Whether the employee’s behavior renders the employee unable to perform their duties satisfactorily

• Whether the employee’s behavior leads to refusal, reluctance or inability of other employees to work with the employee

• Whether the employee is guilty of a serious breach of the Criminal Code, causing injury to the general reputation of the employer and its employees

• Whether the employee’s off-duty conduct makes it difficult for the employer to properly carry out its functions or efficiently manage its work and efficiently direct its workforce.

Harassment outside of work may spill into the workplace. The onus is on the employer to show misconduct to justify disciplinary action. Employers should conduct investigations for off-duty conduct to determine and support any disciplinary actions.

Similarly, social media posts may also spill into the workplace. Employers should first look for any breach of their social media policy. Employees should know that anything they post on the internet has the potential to be viewed world-wide. If the posting or communication creates potential harm to the employer’s reputation or a poisonous work environment, the conduct could warrant disciplinary action.

Employees cannot be disciplined for off-duty conduct unless it causes harm to the employer or is incompatible with proper discharge of the employee’s duties. Similar to harassment at work, employers should conduct workplace investigations to support any decision on off-duty conduct.

Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].

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