Off-duty behaviour, at-work reprisals

When do an employee’s actions away from work become a legitimate employer concern?

When federal public servant Edith Gendron was fired by Heritage Canada for not stepping down as president of a separatist club, she brought to the fore one of the most intractable issues in employee relations.

The issue: to what extent can employers sanction workers for their activities outside of work?

Whether it is political involvement, criminal acts or personal expressions online, workers’ activities off-hours have caused employers no small amount of grief and hand-wringing. Cases vary from employers that punish workers for such things as cursing at a colleague at a local store to governments taking actions against employees who campaign publicly against its policies. (For a look at these cases, click on the "related articles" link at the bottom of this page.)

In the Heritage Canada case, Gendron was fired this spring after she defied employer orders to step down as president of a sovereigntist group, Le Québec, Un Pays! which translates into “Quebec, A Country!”

The department said it didn’t object to her involvement as a member; but her position puts her in conflict with the department’s mandate in fostering national unity. Gendron, however, maintained that as long as she fulfilled her duties, what she does outside of work shouldn’t be a concern of her employer. The federal public service union has filed grievances on Gendron’s behalf, claiming unfair dismissal. (For more on this case, see sidebar below.)

The question for employers is: To what extent can employers issue disciplinary action against employees for off-duty conduct — and on what basis?

After a review of 33 arbitration awards conducted in 1989, lawyers Stephen Krashinsky and Jeffrey Sack, authors of the book Discharge and Discipline, concluded that, employees may be disciplined for off-duty conduct if it:

•detrimentally affects the employer’s reputation;

•renders the employee unable to properly discharge his or her employment obligations;

•causes other employees to refuse to work with him or her; or

•inhibits the employer’s ability to efficiently manage and direct the production process.

But Toronto-based lawyer Stuart Rudner said outcomes of similar cases often diverge; thus, employers should tread with caution.

“It’s hard to come up with a hard and fast rule,” he said. Even when the off-duty conduct for which an employee is sanctioned is criminal, it’s not always certain that the employer is right to fire the employee.

Rudner offered two examples. In Rhodes v. Zehrmart Ltd., a grocery clerk was fired after he bought some marijuana from a co-worker. The drug purchase took place outside working hours and off the premises. Despite the criminal nature of the transaction, the Ontario Supreme Court in this 1983 wrongful dismissal case said “there was no evidence... that the conduct of the (employee) was prejudicial to the (employer’s) reputation.”

Contrast this case to Pliniussen v. University of Western Ontario, where a part-time lecturer in ethics was dismissed from his position at the university’s School of Business Administration in 1980. The school had discovered that the lecturer had been convicted of falsely claiming insurance on a lost watch.

“The plaintiff’s conduct was immoral, dishonest and deceitful, and potentially damaging to the reputation” of the school, wrote the Ontario County Court judge presiding over the lecturer’s lawsuit against the school for wrongful dismissal and breach of contract.

“It was indisputably unacceptable for a lecturer who had practised unethical conduct in the business community to instruct students in business ethics.” Hence, the school had just cause, wrote the judge.

But if Pliniussen couldn’t be trusted to teach business ethics due to his insurance fraud, what about a social services caseworker who was convicted of fraudulent welfare claims to the tune of $77,000? In 2000, Peggy Shillingford, a City of Toronto employee of 10 years, was responsible for working with clients of the Ontario Works welfare program to assess their needs and determine eligibility for assistance.

After she was arrested and charged for making false welfare claims with the Region of Peel, she lost her job. The city argued that the caseworker had acted in such a way that was potentially prejudicial to its reputation. Further, she held a position of trust as her work was largely unsupervised. It was unacceptable to the city that she made false welfare claims to solve her financial difficulties, as her work required her to advise clients on how to handle personal difficulties of precisely this kind.

Arbitrator Michael Bendel, member of the Ontario Arbitration Board, while agreeing with this line of argument, found however that the city could have considered transferring Shillingford to another position — if not within the social services department, then somewhere within the city’s bureaucracy.

“This is a 10-year employee with a good employment record, who has become unable to perform her previous work as a result of fraud committed, not against her employer, but against another municipality. There is no reason why she should not resume a career as a productive employee,” said the arbitrator, who ordered the discharge set aside.

Dutiful and faithful

Things aren’t much clearer in the public sector, where a case reaching the Supreme Court of Canada in the early 1980s had established an expectation of employee loyalty. The case, Fraser v. Canada, centred on a Kingston, Ont.-based Revenue Canada unit supervisor. He was dismissed for carrying on a campaign against the federal government for bringing in the metric system and the Charter of Rights and Freedoms. His criticisms were at times “vitriolic,” the court found, pointing to the bureaucrat’s letters to newspapers, his appearances on an open-line radio talk show and a television talk show, as well as a national pamphlet and telegram campaign that he organized.

“He began to make personal attacks against the Prime Minister and compared him and the Canadian Government to the Nazi regime,” wrote the high court. “He was working, by his own admission, 18 hours a day in opposition to the government and its policies.”

The judges in this case ruled that a job in the public service had two dimensions: one relating to the employee’s tasks and performance, and another to “the perception held by the public.” The need for real and apparent impartiality of the public service “dictated a general requirement of loyalty” on the part of the public servant to the government, stated the court.

“The employee’s sustained and highly visible attacks on major government policy, however, amounted to a lack of loyalty to the government inconsistent with his duties as an employee of the government.”

Although pre-charter, that ruling, said Montreal lawyer Dominique Monet, stood as a benchmark decision for cases involving off-duty conduct. Indeed, Fraser was invoked in a 2002 case in Alberta, in which a social worker criticized government policies in letters to politicians in the government and in opposition. While similar to Fraser, however, the judge hearing this Alberta case reached a different conclusion.

In this case, A.U.P.E. v. Alberta, child protection social worker Jason Gibson employed by the province, was reprimanded for writing a letter expressing his concerns over the planned redesign of social services, which he sent to his Member of the Legislative Assembly and to an opposition MLA. The employer maintained Gibson had a duty not to criticize the government publicly. At the Alberta Court of Appeal, however, the three judges hearing the appeal ruled that Gibson’s letter did not breach his duty of fidelity. Further, the limitations imposed by the employer violated Gibson’s freedom of expression.

It cannot be said, wrote the court, “that the subject matter of Mr. Gibson’s letter was in this case clearly opposite in interest to Mr. Gibson’s employer. After all, the concerns he expressed related directly to the ability of social workers to effectively protect children from harm — a concern shared by both government and opposition MLAs.”

Fired over politics: A separatist in their midst

When Edith Gendron was hired four years ago for a post in the Official Languages Division of Heritage Canada, she told the hiring manager, a director of operations, of her sovereigntist leanings. The director at the time didn’t think Gendron’s politics mattered in her day-to-day job, which was to handle funding requests — up to but not including making financial decisions — for French language education for Acadian communities in the Atlantic provinces.

Gendron not only sees no conflict between her political opinions and her work, she believes in the value of her function, which was effectively to foster French language among francophone communities outside of Quebec.

In late January, when the founding committee of a new sovereigntist group setting up shop in the western Quebec region, nominated her for its presidency, she consulted both her union and Heritage Canada’s code of ethics. She then brought her concerns to management, requesting a confidential report to be kept in her employee file which would state three things:

•the employer is aware of her outside activities;

•the employer confirms that there is no conflict of interest; and

•the employer would take measures to ensure the impartiality of her work at the department. “For example, if I have certain privileges like having a work computer at home, I could return all that equipment so that there’s never any perception that government equipment is used for the group,” said Gendron.

Gendron further undertook two conditions on herself. First, she would never make any public criticism of her employer, Heritage Canada; if the occasion ever comes up, she would cede the spokesperson role to someone else in the group. Second, she is content never to have the power to make any funding decision; if she ever has to fill in for someone with authority over program funding, her decisions in the interim would be subject to review. “Thus, I’ve engaged to keep myself at the lower ranks” of the bureaucracy, Gendron noted.

In response to her request, management at the department issued the order that she step down as president of the group. She refused, vowing now to fight this order all the way to the Supreme Court if necessary.

“It’s not just a question of being a sovereigntist working for Heritage Canada. In another five or 10 years, depending on the government of the day, the same could happen to an environmentalist working for Environment Canada.”

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