A school employee, who must be a good role model both at work and in the community according to the school’s policy, had his children taken away by Children’s Aid due to a one-day drinking binge. Does this mean we have just cause to fire?
Question: A school employee, who must be a good role model both at work and in the community according to the school’s policy, had his children taken away by Children’s Aid due to a one-day drinking binge. Does this mean we have just cause to fire?
Answer: In order for an employer to justify disciplining an employee for misconduct committed off-duty, it must be able to establish a connection between the employee’s private life and the employment relationship. In every workplace, including a school, to justify disciplining an employee for off-duty conduct an employer must show it:
•detrimentally affects its reputation;
•renders the employee unable to properly discharge his employment obligations;
•causes other employees to refuse to or be reluctant to work with that person; or
•inhibits the employer’s ability to efficiently manage and direct its business.
In the school context, employees are often held to a higher standard of conduct, both on- and off-duty. For example, in Attis v. New Brunswick District No. 15 Board of Education, 1996 CarswellNB 125 (S.C.C.), the Supreme Court of Canada ruled teachers occupy a special role in society and a special duty exists whether on or off the job. Justice La Forest said:
“Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly on the community’s perception of the ability of the teacher to fulfill such a position of trust and influence and upon the community’s confidence in the public school system as a whole.
“By their conduct, teachers as ‘medium’ must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to ‘choose what hat they will wear on what occasion.’”
The consensus in Canadian jurisprudence is that teachers serve as role models and are expected to lead by example. In Abbotsford School District No. 34 v. Shewan, 1987 CarswellBC 413, (B.C. C.A.), the British Columbia Court of Appeal also spoke of the unique role played by teachers in society and the harm their misconduct can cause to students and to the community:
“The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.”
School employees who are not teachers, such as custodians or bus drivers, are also held to a high standard of conduct, although generally not as high as the standard proscribed for teachers.
But just because another agency determines a school employee has committed some wrongdoing while off-duty does not mean the misconduct occurred as a fact in the context of the employee’s employment. In most instances, an employer should conduct an independent investigation into the alleged misconduct to ensure it can prove, independent of any third-party’s assessment, that the misconduct occurred.
For example, in Centres de la Jeunesse et de la Famille Batshaw (1996), 55 LAC (4th) 31 (Frumkin), a case from Quebec, the arbitrator determined a single act of domestic violence between a worker and his girlfriend did not establish that he was unsuitable to work as a child-care worker. The employer relied primarily on its assessment of a police report in deciding to dismiss him. Upon considering the evidence, the arbitrator determined it was just as likely he was defending himself during the domestic incident as it was that he was the aggressor. The arbitrator said:
“Given the state of the evidence, it is hardly possible for the tribunal to conclude that the grievor committed a serious act of domestic aggression and violence which could in any way have led the employer to question his suitability to continue in his role of child-care worker. There is nothing in the evidence of past violence or to suggest that the grievor might be prone to domestic violence.
“As deplorable as the incident may have been, the evidence of that incident does not even remotely suggest that the grievor’s role in it rendered him unsuitable to continue in his position of child care worker with the employer. The incident was an isolated one and the tribunal has difficulty understanding how the employer would have drawn from it the conclusion which it did without first having conducted a most thorough investigation of the circumstances, an initiative which was never undertaken.”
In contrast, in School District No. 6 (Rocky Mountain) and CUPE, Local 440 (Atwood Grievance) (2002), 114 LAC (4th) 298 (Jackson), the worker was employed as a school bus driver. While he was off-duty he was charged with a drinking and driving offence. The employer suspended him pending an investigation. When he was ultimately convicted and his license was suspended for 12 months, the employer terminated him.
The arbitrator found the driver’s off-duty conduct, being in the care and control of a vehicle while impaired, had been well-established on the evidence, as he had been convicted of the criminal offence and had admitted he was intoxicated while operating his vehicle. The arbitrator concluded there was a clear connection between the off-duty conduct and his position as a driver.
The nature of the offence, when considered by the public and the parents of the students who traveled on the school bus, was detrimental to the employer’s reputation. The misconduct also rendered him unable to perform his job, as his driver’s license was suspended. Thus, the arbitrator determined his conduct was incompatible with his duties as a bus driver of school-age children and the decision to terminate him was justified.
If an employer determines, after a thorough investigation, the employee has engaged in off-duty misconduct, the employer should then consider:
•What type of contact does the employee have with students? Does he act as a role model for students and for the community?
•Has the employee’s off-duty misconduct detrimentally affected the employer’s reputation?
•Has the employee’s misconduct threatened the employee’s ability to work as a fiduciary in a position of trust?
The greater the position of trust and the greater connection between the employee’s misconduct and his position in the school, the greater the probability the employer has just cause.
Turning specifically to the facts of your question, if the employee in question is a teacher, there is a higher probability an employer will have just cause to dismiss a teacher whose children have been removed by Children’s Aid due to excessive drinking. If the employee is a custodian who has little contact with students, it is unlikely that discharge would be upheld. In addition, for any type of employee, when misconduct occurs as a result of drinking, the employer should question whether the employee has an addiction problem and requires accommodation and the opportunity to seek treatment, prior to terminating his employment.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
Answer: In order for an employer to justify disciplining an employee for misconduct committed off-duty, it must be able to establish a connection between the employee’s private life and the employment relationship. In every workplace, including a school, to justify disciplining an employee for off-duty conduct an employer must show it:
•detrimentally affects its reputation;
•renders the employee unable to properly discharge his employment obligations;
•causes other employees to refuse to or be reluctant to work with that person; or
•inhibits the employer’s ability to efficiently manage and direct its business.
In the school context, employees are often held to a higher standard of conduct, both on- and off-duty. For example, in Attis v. New Brunswick District No. 15 Board of Education, 1996 CarswellNB 125 (S.C.C.), the Supreme Court of Canada ruled teachers occupy a special role in society and a special duty exists whether on or off the job. Justice La Forest said:
“Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly on the community’s perception of the ability of the teacher to fulfill such a position of trust and influence and upon the community’s confidence in the public school system as a whole.
“By their conduct, teachers as ‘medium’ must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to ‘choose what hat they will wear on what occasion.’”
The consensus in Canadian jurisprudence is that teachers serve as role models and are expected to lead by example. In Abbotsford School District No. 34 v. Shewan, 1987 CarswellBC 413, (B.C. C.A.), the British Columbia Court of Appeal also spoke of the unique role played by teachers in society and the harm their misconduct can cause to students and to the community:
“The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.”
School employees who are not teachers, such as custodians or bus drivers, are also held to a high standard of conduct, although generally not as high as the standard proscribed for teachers.
But just because another agency determines a school employee has committed some wrongdoing while off-duty does not mean the misconduct occurred as a fact in the context of the employee’s employment. In most instances, an employer should conduct an independent investigation into the alleged misconduct to ensure it can prove, independent of any third-party’s assessment, that the misconduct occurred.
For example, in Centres de la Jeunesse et de la Famille Batshaw (1996), 55 LAC (4th) 31 (Frumkin), a case from Quebec, the arbitrator determined a single act of domestic violence between a worker and his girlfriend did not establish that he was unsuitable to work as a child-care worker. The employer relied primarily on its assessment of a police report in deciding to dismiss him. Upon considering the evidence, the arbitrator determined it was just as likely he was defending himself during the domestic incident as it was that he was the aggressor. The arbitrator said:
“Given the state of the evidence, it is hardly possible for the tribunal to conclude that the grievor committed a serious act of domestic aggression and violence which could in any way have led the employer to question his suitability to continue in his role of child-care worker. There is nothing in the evidence of past violence or to suggest that the grievor might be prone to domestic violence.
“As deplorable as the incident may have been, the evidence of that incident does not even remotely suggest that the grievor’s role in it rendered him unsuitable to continue in his position of child care worker with the employer. The incident was an isolated one and the tribunal has difficulty understanding how the employer would have drawn from it the conclusion which it did without first having conducted a most thorough investigation of the circumstances, an initiative which was never undertaken.”
In contrast, in School District No. 6 (Rocky Mountain) and CUPE, Local 440 (Atwood Grievance) (2002), 114 LAC (4th) 298 (Jackson), the worker was employed as a school bus driver. While he was off-duty he was charged with a drinking and driving offence. The employer suspended him pending an investigation. When he was ultimately convicted and his license was suspended for 12 months, the employer terminated him.
The arbitrator found the driver’s off-duty conduct, being in the care and control of a vehicle while impaired, had been well-established on the evidence, as he had been convicted of the criminal offence and had admitted he was intoxicated while operating his vehicle. The arbitrator concluded there was a clear connection between the off-duty conduct and his position as a driver.
The nature of the offence, when considered by the public and the parents of the students who traveled on the school bus, was detrimental to the employer’s reputation. The misconduct also rendered him unable to perform his job, as his driver’s license was suspended. Thus, the arbitrator determined his conduct was incompatible with his duties as a bus driver of school-age children and the decision to terminate him was justified.
If an employer determines, after a thorough investigation, the employee has engaged in off-duty misconduct, the employer should then consider:
•What type of contact does the employee have with students? Does he act as a role model for students and for the community?
•Has the employee’s off-duty misconduct detrimentally affected the employer’s reputation?
•Has the employee’s misconduct threatened the employee’s ability to work as a fiduciary in a position of trust?
The greater the position of trust and the greater connection between the employee’s misconduct and his position in the school, the greater the probability the employer has just cause.
Turning specifically to the facts of your question, if the employee in question is a teacher, there is a higher probability an employer will have just cause to dismiss a teacher whose children have been removed by Children’s Aid due to excessive drinking. If the employee is a custodian who has little contact with students, it is unlikely that discharge would be upheld. In addition, for any type of employee, when misconduct occurs as a result of drinking, the employer should question whether the employee has an addiction problem and requires accommodation and the opportunity to seek treatment, prior to terminating his employment.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
