Off the clock, on the hook?

Recent incidents shine spotlight on off-duty conduct and cause for discipline and dismissal

By Jeffrey R. Smith

What employees do on their own time has traditionally been of little concern to employers, except in extreme cases.

However, in this age of surveillance technology and social media, the pressure is on employees to behave themselves if there’s a chance their connection to their employer could be made public. Employers don’t want their names dragged through the mud because of the antics of employees, and these days antics are becoming more public.

Last month, a Toronto-area man became international news when he was caught on camera acting foolish and saying vulgar things to a female news reporter and the reporter confronted him about it. The man’s response didn’t help his cause and he came off looking like an idiot. Within a few days, people on the Internet identified him as an employee of Ontario’s Hydro One utility provider. Hydro One management was likely horrified that their name was being associated with such behaviour, as the man was soon fired with a public statement that the employer did not condone such behaviour. There’s been no word on whether the man has challenged his dismissal.

The incident recalls the Vancouver riots of a few years ago, where several people were caught on video looting downtown businesses and were later identified as employees of certain companies. Those companies then fired the looters for not upholding certain company values and harming the companies’ reputations.

An Ontario arbitrator recently upheld the dismissal of a Toronto District School Board (TDSB) worker who also displayed inappropriate behaviour while off duty. In this case, a big part of why the worker was dismissed — and the arbitrator agreed — was that the worker willingly identified herself as a TDSB employee and the misconduct happened on TDSB property.

The misconduct — which involved hurling vulgar insults and threats at a student who had bullied the worker’s daughter — also struck at the heart of the TDSB’s need for trust in the school environment and the perception of parents with students attending the board’s schools. In the end, there was no doubt the worker’s behaviour crossed a line: see
Toronto District School Board and CUPE, Local 4400 (Hatzantonis), Re, 2015 CarswellOnt 6561 (Ont. Arb.).

When it comes to what employees do and how they do it when they’re not at work, it can be a tricky balance. Obviously, employers shouldn’t be able to have control over employees when they’re off duty — some might feel they have too much control over employees who are at work.

However, employers have a right to be concerned over how their business is perceived by the general public. If that perception is negative, it can hurt the bottom line. So if an employee is doing something bad — like harassing or degrading people, for example — and it becomes known that employee is associated with the employer, the employer may have to do something to distance itself from what the employee is representing. And dismissal can be the most definite way of getting that distance, and it ensures people won’t see the employer as condoning the behaviour in any way. But how far should this jurisdiction go?

Should employers be able to discipline employees for certain types of off-duty behaviour that may involve their reputation or run contrary to company values? Or should off-duty behaviour be off limits completely?

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