Off-duty behaviour cases

Examples of how courts and arbitrators view off-duty behaviour

Below are the two cases referred to in the "Off-duty behaviour, at-work reprisals" article by Uyen Vu in the June 14, 2004, issue of Canadian HR Reporter.

Case 1. Violet Legere, a YMCA-YWCA employee ran into her colleague and neighbour at a grocery store one day in 1996. She and the colleague had been on opposing sides of a bitter environmental dispute over the city’s proposed landfill.

Legere was among those residents concerned about the landfill’s potential to contaminate the area and devalue their homes, while the colleague’s husband stood to make some money off of the construction of the landfill. Some time after Legere found out that the province approved the landfill project, she ran into the colleague at the store.

When the colleague, who had a four-year-old child with her, approached Legere and said "Hi," Legere lost it. "You f*** right off," she told the colleague. She was soon dismissed from her job running after-school programs at the YMCA-YWCA. The employer’s reason was she had cursed in front of children, thereby violating the Y’s standard of conduct.

The ruling: Judge J. McLellan at the New Brunswick Court of Queen’s Bench determined that “the phrase ‘f*** off’ is just a forceful and intense way to say ‘leave me alone’ or ‘go away.’” Thus, Legere was honestly exercising her right to free speech and the Y did not have grounds to dismiss Legere, said the judge.

Case 2. One recent case in British Columbia involved teachers mobilizing against the Glen Campbell government in the fall of 2002. After the government removed from the collective agreement such provisions as that on class size, the teachers started handing out report cards on the government policies during parent-teacher meetings.

The teachers at first were told by school boards that this conduct wasn’t permitted. However, an arbitrator ruled differently. Any message that is acceptable in a public arena should also be permitted in parent-teacher interviews.
His ruling did not repudiate the duty of fidelity, however. The duty still exists, but only to the employer in the strict sense of the word:

“The common law duty of fidelity owed by a teacher, and arising from his or her employment, is a duty owed to the School Board employing that teacher. A teacher does not owe a duty of fidelity arising from employment to the provincial government,” wrote arbitrator Don Munroe.

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