Can I be disciplined for off-duty behaviour?

September 27, 2011 Andrew Lawson Employee Relations, Human Resources, Human Rights

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“I am at a party on my day off and a coworker hurls racial insults at me or makes sexual suggestive comments to me.”

• Am I protected by my employer’s harassment and discrimination policy?
• Likewise, if I am the one doing the hurling or suggestive commenting, am I subject to discipline under my employer’s policies?

I am asked the above questions frequently by workers attending my harassment and discrimination prevention workshops. The simple answer is: it depends. Let’s look at some examples:

Swearing at co-worker not just cause for firing

The New Brunswick Court of Queen’s Bench considered the effect of off-duty behaviour in Legere v. YMCA-YWCA of St. John. The employee in this case saw a co-worker in public and rebuked her with very strong language. The employer dismissed the employee for cause claiming that her behaviour was expressly forbidden by written policy of the employer.

The court ruled that the employer did not have just cause to terminate this employee. The court found the employee:

• simply asked, although in a forceful way, to be left alone;
• did not add a personal insult to the remark;
• was exercising her right to freedom of expression.

This case illustrates that the courts may not uphold policies of the employer that are found to be unreasonably intrusive or restrictive.

Loss of confidence in worker is just cause for firing

In a somewhat similar case the Supreme Court of Canada came to a different conclusion. In Ross v. New Brunswick School District No. 15 the court found the employer did have just cause for termination because:

• the employee, a teacher, published racist statements over a period of years.
• this behaviour contributed to a “poisoned environment” in the workplace
• there was a loss of confidence in the teacher and in the system.

Ask yourself these questions:

1. Is the behaviour harmless self-expression or a deliberate personal insult?
2. Is the behaviour an isolated event or does in happen regularly, over a long period of time?
3. Is the behaviour likely to cause harm to your organization?

Unionized workplaces

For those readers working within a unionized environment, some guidelines established in the case of Millhaven Fibres[1] illustrate whether or not the employer has the right to invoke a policy against employees during their off-duty hours:

1. Did the worker’s conduct harm the employer’s reputation or product?
2. Did the worker’s conduct render him unable to perform his duties as an employee in a satisfactory manner?
3. Does the worker’s conduct lead to a refusal, reluctance, or inability of other employees to work with him?
4. Has the worker been guilty of a serious breach of the Criminal Code, and is this conduct injurious to the general reputation of the employer and its employees?
5. Has the worker’s conduct made it difficult for the employer to manage its operations efficiently and to direct its workforce efficiently

Andrew Lawson
www.learndl.ca

[1] Millhaven Fibres  Ltd.,  Millhaven Works,  and  Oil,  Chemical and  Atomic  Workers International,  Local 9­670  (1967),  1(A) Union­Management  Arbitration Cases  328 (Anderson)

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate

Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more

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Bill 168, canadian employment law, discrimination, Dismissal, employee discipline, employment law, harassment, HR issues, off-duty acts, off-duty conduct, off-duty hours, policies and procedures, policy manual, prevention workshops, terminations, workplace code of conduct, workplace harassment, wrongful dismissal

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