The difficult decisions for employers when employees break the law while off-duty
By Jeffrey R. Smith
Do you know what your employees are up to when they’re not at work? Does it matter? Sometimes it does, but most of the time it doesn’t, or at least shouldn’t.
The behaviour of employees when they’re off-duty is usually nothing the employer is concerned about. However, if that behaviour runs employees afoul of the law, the employer likely can’t help but want to know more, since there is a chance it could affect the employer— whether it be the employee’s ability to come into work as scheduled and do her job, or perhaps the reputation of the employer if the behaviour is serious and the employee is known to be associated with the employer.
It can also complicate matters if the employee holds a position with the expectations of a high standard of conduct and trust in their judgment — which can be called into question if the employee makes some bad choices in her free time.
Take, for example, the case of the British Columbia firefighter who was pulled over for suspected impaired driving while on a night out while off-duty. He also happened to be driving a vehicle owned by the fire department — with permission — though it was unmarked except for a fleet number on the back. The firefighter failed two breathalyzer tests and had his driver’s licence suspended for 90 days.
The firefighter reported it to his chief the next day, expressing a lot of remorse. The chief and the HR department escalated the matter to higher levels within the municipality, and it was decided the firefighter had exposed the municipality to liability and endangered public safety, which was contrary to the professional expectations of his position— particularly since he was an assistant chief. His employment was terminated.
However, a court found that termination was too harsh of a disciplinary response. It found that the firefighter had a distinguished record and had the confidence of almost every firefighter on staff — a letter of support was signed by almost all of the firefighters and the chief didn’t want to fire him — so there would be no issues of anyone having problems working with him going forward. In addition, there was no threat to the fire department or municipality’s reputation, because the licence suspension wasn’t public record and the vehicle wasn’t identifiable as department property.
And finally, since the firefighters still had confidence in him, it was likely the public would still if word got out about the incident, said the court in awarding the firefighter wrongful dismissal damages: See Klonteig v. West Kelowna (District), 2018 CarswellBC 126 (B.C. S.C.).
In the above case, off-duty conduct by an employee in a trusted position may have seemed serious, but it wasn’t enough to affect the employee’s ability to do his job or harm the employer’s reputation. But that may not be the case if the employee is guilty of even worse behaviour, such as that of a Saskatchewan worker who was convicted of one count of possession of electronic images of child pornography leading to a sentence of 60 days in prison, to be served intermittently on weekends.
When the employer learned of the conviction, it fired the employee for harm to its reputation – it was heavily involved in philanthropic ventures in the community, including ones involving children – and his inability to work every third weekend while serving his sentence — a part of his regular schedule. The worker grieved his dismissal, but an arbitrator upheld it, determining that while it may have been possible to accommodate the weekend issue, the potential harm to the employer’s reputation was significant.
Though there wasn’t a direct link between the conviction and the worker’s ability to perform his job duties, there was a link to potential harm to the employer’s relations within the community: see Unifor, Local 892 v. Mosaic Potash Esterhazy Limited Partnership, 2018 CarswellSask 102 (Sask. Q.B.).
When it comes to the off-duty antics of employees, it can definitely make employers uneasy when those antics cross the border into lawbreaking. While many employers would like to use such incidents to cut employees loose for cause, they aren’t always able to. As the favourite saying of employment lawyers goes, it depends on the individual circumstances of the case.
But should employers be able to expect employees to obey the law at all times? How serious does lawbreaking have to be to warrant a severing of ties with an employee? Sometimes it does matter, and sometimes is doesn’t.