Employers can regulate conduct in the workplace but have no authority over what employees do when they’re off duty and away from work.TRUTH
There does come a point when employee off-duty conduct ceases to be a purely private matter and becomes legitimate grounds for discipline.CHALLENGE
As HR director, you need to understand when that point is reached.
Here are the 10 things you need to know to meet that challenge and ensure that your company makes legally sound decisions about whether to terminate employees for off-duty conduct.
- THE ‘NEXUS’ RULE
The right of an employer to discipline an employee for off-duty conduct doesn’t come from a piece of legislation or piece of regulation. It comes from case law. Rule: Termination for off-duty conduct is justified when there’s a “nexus,” or connection, between the conduct and the workplace.
- THE EMPLOYER’S BURDEN TO PROVE ‘NEXUS’
If a dispute gets to court or arbitration, the employer has the burden of proving that the required nexus between the employee’s off-duty misconduct and workplace existed in the particular case.
- HOW EMPLOYERS CAN MEET THE BURDEN (THE 5 MILLHAVEN FACTORS)
The seminal case on nexus is a 1967 Ontario ruling called Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670,  O.L.A.A. No. 4] which lists 5 situations in which the required nexus exists:
- The off-duty misconduct hurts the company’s reputation;
- It renders the employee unable to do his/her job effectively;
- It makes co-workers unwilling, unable or reluctant to work with the employee;
- It’s a serious breach of the Criminal Code; or
- It makes it hard for the company to properly carry out “its function of efficiently managing its works and efficiently directing its working forces.”
While misconduct may transgress many if not all 5 factors, proving any one of them is enough to justify termination for off-duty misconduct.
- HOW TO PROVE HARM TO REPUTATION
Harm to reputation argument is the most commonly used of the Millhaven factors. To prove it, employers need not show that the company’s reputation suffered actual damage, only that the misconduct had the potential to cause serious harm. The reputation factor is especially effective for organizations in positions of public trust such as schools, religious organizations, law enforcement and social and charitable agencies.
TABLE 1: Cases Upholding Termination for Off-Duty Conduct for Harm to Reputation
|Grand Erie District School Board v Ontario Secondary School Teachers’ Federation, District 23, 2016 CanLII 72391 (ON LA)||Teacher gets involved in international cheese smuggling operation|
|Stokaluk v Deputy Head (Canada Border Services Agency), 2015 PSLREB 24||Border Services Officer spends his off-duty time associating with individuals involved in a criminal organization which he fails to disclose and does a little drug trafficking of his own|
|Keating v. Ontario (Ministry of Community Safety & Correctional Services),  O.P.S.G.B.A. No. 5||Criminal harassment charges against corrections official exposes Ministry to public controversy, negative press and bad publicity, e.g., “Jailer Faces Stalking Charges” headline|
|Kelly v. Linamar Corp.,  O.J. No. 4899||Manager of large corporation with reputation for philanthropy uses home computer to access child porn|
|Unifor, Local 892 v Mosaic Potash Esterhazy Limited, 2018 SKQB 68||Mining supervisor convicted of possessing child porn|
|Lougheed Imports Ltd. v. United Food & Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC L.R.B.)||Auto dealer employees Facebook postings mock bosses and dealerships as “all crooks”|
|Alberta v. AUPE (R Grievance),  A.G.A.A. No. 20||Healthcare worker constantly refers to her supervisor as “Nurse Rached” on her blog post|
|York University Staff Association v York University, 2018 CanLII 41354 (ON LA)||Despite repeated warnings, university employee continues posting anti-Semitic comments on Facebook and publicly criticizes university for disciplining him|
|Wellington Board of Education and OSSTF,  O.L.A.A. No. 129||Teacher in small community creates media storm after being convicted of indecent exposure|
|Ranni v. Halifax (Regional Municipality),  N.S.J. No. 121||Police officer continues to drive after his licence is suspended for impaired driving—reinstatement would send wrong message to public, says court|
|Lapostolle v. Attorney General of Canada, 2013 FC 895 (CanLII)||Corrections officer has personal associations with organized crime boss|
|Smith v Kamloops and District Elizabeth Fry Society (1996), 1996 CanLII 2897 (BC CA)||Social worker has sexual relationship with sex offender who’s client of Society she works for|
- HOW TO PROVE IMPAIRMENT OF EFFECTIVENESS
Off-duty conduct is grounds for termination if you can prove its consequences undermine the employee’s effectiveness. The most straightforward example is misconduct that makes it impossible for employees to do their job, e.g., absence due to incarceration or loss of a driver’s licence or other professional credential. But most cases are more subtle and involve irreparable damage to the integrity, credibility and respect the employee needs to be viable. This is especially true for positions of trust or influence in which employees are held to a higher standard of ethics and integrity who serve the public or vulnerable clientele, such as police officers, teachers, doctors, financial advisors and public officials.
TABLE 2: Cases Upholding Termination for Off-Duty Conduct for Impaired Effectiveness
|Nicolas v. Deputy Head (Department of Fisheries and Oceans), 2014 PSLRB 40 (CanLII)||How can anyone expect the fishing industry to take the [Fisheries Dept.] seriously when one of its officers socializes with the very poachers and drug traffickers he was hired to stop, the court asks|
|Tobin v. Canada (Attorney General),  F.C.J. No. 968||Consultative psychologist at maximum security prison undermines his position by pleading guilty to criminal harassment of women|
|Ross v. New Brunswick School Dist. No. 15,  1 S.C.R. 82||Teacher who makes racist public statements and writings undermines his capacity to live up to the community’s values for educators|
|Ottawa-Carleton Dist. School Bd. v. Ont. Secondary School Teachers’ Fed., Dist. 25 (Cobb Grievance),  O.L.A.A. No. 597||Chief custodian of school board destroys his capacity to carry out his responsibilities for looking after the safety of school children by robbing a bank during his lunch hour|
|Harrop v. Markham Stouffville Hospital, 1995 CanLII 7295 (ON SC)||Psychiatric nurse irreparably damages hospital’s trust by developing improper close personal relationship with a patient|
- HOW TO PROVE COMPLICATIONS WITH CO-WORKERS
Misconduct away from work has a nexus to the workplace when it makes co-workers unwilling, unable or reluctant to work with the employee. Loss of colleagues’ trust, respect and acceptance makes the employee irreparably damaged goods. The most common pattern: making racist, disparaging and other objectionable remarks about colleagues on blogs and social media sites.
TABLE 3: Cases Upholding Termination for Off-Duty Conduct for Co-Worker Complications
|Canada Post Corp. v. CUPW (Discharge for Facebook postings Grievance, Arb. Ponak),  C.L.A.D. No. 85||Postal clerk makes derogatory comments about CP and his supervisors on Facebook causing one supervisor to miss time with mental distress|
|Keating v. Ontario (Ministry of Community Safety & Correctional Services),  O.P.S.G.B.A. No. 5||Female employees refuse to work with prison guard after he’s criminally charged for using binoculars to spy on an ex-girlfriend in her home|
|Wasaya Airways LP v. Air Line Pilots Assn. Int’l (Wyndels Grievance),  C.L.A.D. No. 297||Supervisor, president, vice president and HR director of First Nations origin express reluctance to work with pilot who makes racist remarks about First Nations on Facebook(*)|
|Alberta v. AUPE (R Grievance),  A.G.A.A. No. 20||Healthcare worker irreparably alienates colleagues by making nasty remarks about co-workers on her blog and then stubborn refusing to take them down|
*Discipline was 4-month suspension rather than termination
- HOW TO PROVE SERIOUS BREACH OF CRIMINAL CODE
While there’s no fixed definition, serious breaches generally include convictions of crimes involving violence, sexual assault and abuse, harassment and stalking. Financial crimes like theft and forgery are less definitive. In general, the closer the relation between the nature of the crime and the job, the more likely it is to justify discipline. Thus, theft or tax fraud might justify termination of employees in financial positions or who handle cash but not manual labourers.
Example: A BC arbitrator ruled that conviction of possession of stolen property was not just cause to terminate a firefighter with 11 years of spotless service since the misconduct was an isolated incident and the employer couldn’t prove that it had a negative impact on his ability to carry out his work duties [Re Prince George and Prince George Firefighters, Local 1372 (Williams), 2016 CarswellBC 2591 (B.C. Arb.)].
TABLE 4: Cases Upholding Termination for Off-Duty Conduct Involving Serious Crimes
|Unifor, Local 892 v Mosaic Potash Esterhazy Limited, 2018 SKQB 68||Mining supervisor convicted of possessing child porn|
|Wellington Board of Education and OSSTF,  O.L.A.A. No. 129||Elementary school teacher convicted of indecent exposure|
Caveat: There’s a big difference between convicted of a crime and simply being charged with one. An Ontario employer learned this lesson the hard way in a 2016 case that made national headlines featuring the termination of a 67-year-old employee after he was arrested and charged with 2 counts of sexually assaulting a minor. The employee denied the charge and sued for wrongful dismissal. Result: The Ontario Superior Court ruled that criminal charges alone aren’t just cause to terminate for off-duty misconduct and awarded the employee $42,000 in damages [Merritt v. Tigercat Industries, 2016 ONSC 1214 (CanLII)].
- HOW TO PROVE INTERFERENCE WITH COMPANY’S ABILITY TO MANAGE ITS BUSINESS & WORKFORCE
The fifth and vaguest of the Millhaven factors is conduct that does general harm to a business and workplace. Examples include conflicts of interest and acts that damage the trust of clients or authority of management authority, such as disparaging posts on social media.
TABLE 5: Cases Upholding Termination for Off-Duty Conduct for Interfering with Company’s Ability to Manage Its Business & Workforce
|Nicolas v. Deputy Head (Department of Fisheries and Oceans), 2014 PSLRB 40 (CanLII)||Fisheries officer who fraternizes with poachers and drug traffickers undermines not just the agency’s public reputation but also its effectiveness|
|Stokaluk v Deputy Head (Canada Border Services Agency), 2015 PSLREB 24||Border Services Officer’s off-duty associations with drug traffickers is a conflict of interest and violation of Code of Conduct|
|Lapostolle v. Attorney General of Canada, 2013 FC 895 (CanLII)|
|Whitehouse v. RBC Dominion Securities Inc., 2006 ABQB 372 (CanLII)||Investment advisor risks reputation of firm, confidentiality of clients and working relationships with colleagues by bringing prostitutes to office after business hours|
|Kemess Mines Ltd. v. Int’l Union of Operating Engineers, Local 115 (Goudreau Grievance),  B.C.C.A.A. No. 118||Miner’s racist jokes particularly poisonous in multi-racial workforce|
|Dupont and Treasury Bd. (Public Service Commission),  C.P.S.S.R.B. No. 188||Conflict of interest for language teacher to solicit students in his class to enroll in private lessons he gives after school|
- DISCIPLINARY PROCEDURE JUST AS IMPORTANT AS OFFENCE
As with any termination scenario, in evaluating the legality of off-duty misconduct firings courts and arbitrators consider not simply the gravity of the employee’s offence but the employer’s procedures in reaching the decision to terminate. Employers are expected to do a thorough and fair investigation and apply the usual “aggravating and mitigating factors,” e.g., previous disciplinary record, position, acceptance of responsibility, remorse, etc., in determining the extent of the penalty. Examples:
- While derogatory Facebook postings with racial overtones are just cause for discipline, arbitrator cuts penalty from termination to 4-months’ suspension given employee’s sincere apology and fact that company didn’t even consider lesser penalties [ (Wyndels Grievance),  C.L.A.D. No. 297]; and
- Demoting First Class Fire Fighters a grade for pleading guilty to impaired driving was too harsh given their long service, clean disciplinary record and the fact that driving wasn’t essential to the job, rules arbitrator in reducing the penalty to a 2-day suspension [The Corp. of the City of St. Catharines v. The St. Catharines Prof. Fire Fighters’ Assoc., 2017 ONSC 7638 (CanLII)].
- HAVING AN OFF-DUTY CONDUCT POLICY MAY BE DIFFERENCE BETWEEN WINNING & LOSING
While employers have a legitimate interest in regulating off-duty conduct, employees also need to be put on notice that they’ll be held accountable for what they do when they’re off-duty. Establishing a clear written policy (like the Model Policy in HRI) puts you in a stronger position to terminate for off-duty conduct.
Example: Assaulting a co-worker at an after-work Christmas party is grounds for discipline where employee had been warned and was under “no illusion” that the employer “considered the conduct of employees at the Christmas party of interest to it” and subject to discipline [BC (PSERC) v. BC Government and Service Employees’ Union (Singh Grievance),  B.C.C.A.A.A. No. 52].
Conversely, absence of a policy opens the door for employees to challenge discipline on the grounds of unclear expectations.
Example: Arbitrator cites lack of off-duty conduct policy in reducing termination of school custodian for having consensual sexual relationship with 15-year-old girl to 3 months’ suspension [Cape Breton-Victoria Regional School Bd. v. CUPE, Local 5050,  N.S.J. No. 34].
What you need to take away from this story is that the right to terminate for off-duty conduct is a narrow one extending only as far as necessary to protect vital business interests directly implicated by the conduct. Such interests generally do not include an employee’s political, moral and personal choices, even if those choices happen to be repugnant or even criminal in nature. So, before you discipline an employee for an off-duty transgression, look at this article and consider the case with an objective and scrutinizing eye. If the discipline doesn’t survive your scrutiny, it’s unlikely to survive that of an arbitrator either.