Off duty harassment? You’re not off the hook

Employers have right to discharge employee for off-duty conduct considered prejudicial

Tim Mitchell

It is often suggested that an employer has no jurisdiction over the off-duty conduct of its employees. However, this is far from accurate.

In the arbitral context, if off-duty misconduct has a "real and material connection to the workplace," it falls within an employer’s disciplinary reach: Ottawa-Carleton District School Board v. O.S.S.T.F., District 25. An early decision — Millhaven Fibres Ltd. — established that such a connection likely exists where the conduct: harms the company’s reputation or product; renders the employee unable to perform her duties satisfactorily; leads to refusal, reluctance or inability of the other employees to work with him; constitutes a serious breach of the Criminal Code and is injurious to the general reputation of the company and its employees; or makes it difficult for the employer to properly manage its operations and direct its workforce.

Off-duty harassment of either a co-worker or a customer or client clearly has the potential to fall into one or more of these categories.

There are a number of arbitration awards upholding the right of an employer to discipline for off-duty conduct that can be considered or equated with harassment in its various forms:

Mount Royal Faculty Association v. Mount Royal University (Board of Governors) — university entitled to discipline professor who breached university’s personal harassment policy by harassing co-worker while both were off duty.
Memorial University of Newfoundland Faculty Assn. v. Memorial University of Newfoundland — university entitled to discipline professor for sexual harassment of student by professor despite off-campus location; acts of harassment were carried out in the course of an event that was encompassed by university’s sexual harassment policy.
Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke) — disparaging of residents of employer’s facility in an Internet blog.
Wasaya Airways LP v. A.L.P.A. — disparaging of clients of employer’s airline in a Facebook posting having racial overtones.
Alberta v. A.U.P.E. — disparaging co-workers and management in a personal blog.

The common law also recognizes an employer’s right to discharge an employee for off-duty conduct that is likely to be prejudicial to the employer’s business. Case law indicates that off-duty harassment of both co-workers and clients can fall within that principle.

In Simpson v. Consumer’s Association of Canada, an employer was held to be justified in terminating a supervisor for off-duty sexual harassment of employees under his supervision. In upholding the dismissal, the Ontario Court of Appeal held that "it would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment."

In Clarke v. Syncrude Canada Ltd., an employer’s termination decision was upheld where the employee had sexually harassed a supplier’s employees at and after a cocktail party held in conjunction with a business meeting sponsored by the supplier.

The extent of an employer’s civil liability for harassing acts of its employees is less clear. Vicarious liability is imposed on an employer for employees’ acts that are either authorized by the employer or have a sufficient connection to authorized acts as to be considered an unauthorized mode of doing that authorized act. But the Supreme Court of Canada cast doubt on the continuing relevance of the traditional approach in Jacobi v. Griffiths and Bazley v. Curry. In Bazley, the top court suggested semantic discussions of "scope of employment" and "mode of conduct" did not address the question whether liability should be imposed on an employer in cases where precedent was inconclusive.

It held that the proper question to be asked was whether there was a connection or nexus between the employment enterprise and the wrong that had been committed that justified imposition of vicarious liability on the employer, in terms of fair allocation of the consequences of the risk or deterrence.

The Supreme Court identified some of the factors to be taken into account in determining the sufficiency of the relationship between the employer’s creation or enhancement of the risk and the employee’s misconduct as follows:

• the opportunity that the enterprise afforded the employee to abuse her power
• the extent to which the wrongful act may have furthered the employer’s aims
• the extent to which the wrongful act was related to intimacy inherent in the employer’s enterprise
• the extent of power conferred on the employee in relation to the victim
• the vulnerability of potential victims to wrongful exercise of the employee’s power.

In Bazley, the court also addressed the location of the misconduct as a factor in assessing vicarious liability:

"The mere fact that the wrong occurred during working hours or on the jobsite may not, standing alone, be of much importance; the assessment of material increase in risk cannot be resolved by the mechanical application of spatial and temporal factors.

"This said, spatial and temporal factors may tend to negate the suggestion of materially enhanced risk of harm, insofar as they suggest that the conduct was essentially unrelated to the employment and any enhanced risk it may have created (for example, the employee’s tort occurred offsite and after hours). The policy considerations of fair compensation and deterrence upon which vicarious liability is premised may be attenuated or completely eliminated in such circumstances."

Thus, while the potential for an employer to be held civilly liable for an employee’s off-duty harassment of a co-worker or a customer is limited by the principles applied in determining vicarious liability, it is not non-existent.

If an employer could be found to have significantly increased the risk of harm by putting the employee in her position and requiring her to perform the assigned tasks that resulted in the harm, vicarious liability might be found despite the off-duty nature of the misconduct if there was a connection to employment.

Finally, an employer may be liable under human rights legislation for off-duty conduct of an employee where the conduct amounts to a breach of human rights legislation.

Since the Supreme Court of Canada decision in Robichaud v. Canada, it has been clear that employers may be held liable for the discriminatory acts of their employees, subject to the specific terms of the relevant legislation. In Attis v. New Brunswick School District No. 15, a school board was found liable under human rights legislation for the conduct of a teacher in making widely-disseminated anti-Semitic statements while off-duty.

The school board’s liability was based on its failure to respond in any meaningful way and its continuation of the teacher’s employment, effectively condoning his off-duty misconduct. A similar result is possible if an employee’s off-duty harassment was also a breach of human rights legislation.

Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or [email protected].

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