Off-duty conduct didn't hurt business or worker's ability to do job, but there was potential harm to company's reputation in community
When an employee is convicted of a criminal charge related to off-duty behaviour, it doesn't always mean the employer can fire that employee. However, when the employer's reputation is at stake, it can be a different story — regardless of whether there is actual harm or only potential harm to the employer's reputation.
Christopher Jacques was hired in 2004 by the Mosaic Company — a producer of finished phosphate products such as crop nutrients, feed ingredients, potash, phospates, and industrial products located in Esterhazy, Sask. — to be a mine operator.
He was disciplined at one point for damaging a bridge chair when it rolled underneath a hardware skid, for which he received a written warning and one-day suspension. He also had another instance of discipline in which he received another warning. Jacques understood that the letters of discipline he received for both instances of misconduct meant that further breaches of the rules of conduct could result in discharge, though he claimed he never received a copy of those rules.
On Dec. 2, 2009, Jacques was arrested and charged with possession, access, and distribution of child pornography. He was convicted on July 6, 2012, of one count of possession of seven electronic images of child pornography, leading to a sentence of 60 days in prison to be served intermittently on weekends. Jacques appealed his conviction but the Saskatchewan Court of Appeal upheld it on Sept. 18, 2013. He began serving his sentence two days later, from 7 p.m. on Fridays to 7 p.m. Sundays.
Company didn't hesitate after conviction
When Mosaic learned of Jacques’ conviction and the denial of his appeal, it terminated his employment effective Sept. 26, 2013. The termination letter stated that Mosaic had developed a strong “philanthropic and business relationship” with the towns where it operated and his employment was well-known by the local population and had been identified in the press. As a result, the company’s reputation was “adversely affected by your conviction.”
The termination letter also stated that Jacques was a shift worker and was required to work every other weekend, which he wouldn’t be able to do because of his imprisonment on the weekends. The misconduct was also a violation of the company’s rules of conduct, which stipulated that “conviction of a serious criminal offence while in the company’s employ” was an “intolerable violation.”
The union grieved the termination on Jacques’ behalf, arguing that his conviction had no impact on Mosaic’s property, reputation, or ability to conduct its work, and it hadn’t proven Jacques couldn’t perform his job because of his sentence. It also said any violation of the company’s rules of conduct had to have a substantial connection to the employment relationship to warrant dismissal.
The arbitrator noted that dismissal based on off-duty misconduct can be justified if the employee’s misconduct met any of the following tests: it harmed the employer’s reputation or product, prevented the employee from performing his duties, made other employees not want to work with the employee, was criminal in nature, or hindered the employer from managing its workforce or carrying out its business.
The arbitrator agreed with the union that Mosaic hadn’t proven Jacques’ conviction had prevented him from performing his duties, nor that it had any negative effect on the company’s ability to manage its workforce or carry out its business. In addition, the only evidence of anyone having difficulty working with Jacques was one employee with a young family who told a union representative that he might have difficulties working with Jacques — but that employee was on a different crew. No employees who worked with Jacques had come to management about such concerns.
The arbitrator found that there was no indication that Mosaic’s product or sale of its product was affected by Jacques’ conviction. However, the company held a “unique position” as the largest employer in the community and supported non-profit, children-oriented organizations, so the conviction of one of its employees on child pornography-related charges had a particular risk of harming the company’s relationship with the community, said the arbitrator. In addition, the evidence indicated the charge and conviction had been covered on local radio and word about it had spread in the community.
The arbitrator also found that even though Jacques said he had never received a copy of Mosaic’s rules of conduct, the fact was he had been disciplined twice before and was aware that another breach could result in dismissal. The arbitrator noted that, regardless of the extent of a breach of the rules of conduct, both Jacques and Mosaic acknowledged that “this is a heinous crime and in the eyes of the public any involvement with child pornography should not be tolerated or condoned in any fashion.” There didn’t need to be a specific rule for Jacques to know that a conviction for child pornography would put his employment at risk and potentially harm Mosaic's reputation, said the arbitrator in finding Jacques' off-duty misconduct was deserving of discipline and Mosaic's determination that termination was the appropriate level of discipline was reasonable.
The union appealed the arbitrator's decision, claiming it was unreasonable for Mosaic to claim its reputation was harmed in the termination letter and have the arbitrator finding there was only potential for harm. Potential harm didn't establish a real connection between the off-duty misconduct and Jacques' job duties, the union said.
The appeal court found that the cause of discipline was consistent throughout and there was a clear nexus between the termination letter's reference to reputational harm and the arbitrator's finding of potential reputational harm. It also found that Mosaic didn't have to prove actual harm, but the impact of its reputation in the community.
"It is Mosaic's position that to maintain the employment of an individual convicted of child pornography charges may very well jeopardize its reputation," said the court. "I find it reasonable that the company feels it may appear hypocritical to be sponsoring many events and organizations involving small children while, at the same time, providing employment to an individual convicted of the charges of which (Jacques) was convicted."
The court disagreed with the union's argument that for there to be a connection between the off-duty misconduct and the employee's employment, there has to be a link between the behaviour and the employee's job duties. If the off-duty misconduct can affect the employer's interests or business, then that is enough, said the court.
"The real issue, rather, is whether the impugned off-duty conduct, considered in the context of the situation as a whole, is incompatible with the employee's continued employment," the court said.
The court determined that the arbitrator carefully reviewed all of the tests to identify if the off-duty behaviour warranted discipline and dismissal. As a result, it found the arbitrator's decision was reasonable and dismissed Jacques' appeal.
For more information see:
• Unifor, Local 892 v. Mosaic Potash Esterhazy Limited Partnership, 2018 CarswellSask 102 (Sask. Q.B.).
