Conduct unbecoming becoming employer’s problem?

The National Football League (NFL) has been widely criticized these past recent weeks regarding how it dealt with (or did not deal with) Baltimore Ravens’ ex-player, Ray Rice, when it initially discovered that he allegedly committed a serious act of violence against his then-fiancée. Even though Rice was not charged with a crime, once a videotape of the incident was released by media, the Baltimore Ravens fired him from the team and the NFL suspended him indefinitely from the league. Even though most employers will never have to deal with such a high profile, highly-publicized incident, many employers may be faced with an employee’s off-duty conduct which undermines the employment relationship.

It is generally accepted that an employee’s personal life and conduct, which does not affect his or her ability to do his or her job, should never become a disciplinary matter at work. In most cases, such behaviour is none of the employer’s business unless it can be shown to seriously undermine the employment relationship (take for example, the employee in a job requiring a high level of trust who is accused or convicted of fraud in a personal matter.) Question, however, how you, as an employer, would react if you discovered that one of your employees was the person creating and distributing racist anti-immigration flyers in Brampton, or consuming or distributing child pornography, albeit on personal time, or is the perpetrator of domestic violence?

The basic test for employer discipline for off-duty conduct comes from the 1967 arbitration case called Re: Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U Loc.9-670, [1967], O.L.A.A. No. 4 (QL) in which the conduct must meet at least one of five criteria, as follows:

… there is an onus on the Company to show that:

1. the conduct of the grievor harms the Company’s reputation or product
2. the grievor’s behaviour renders the employee unable to perform his duties satisfactorily
3. the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
4. the grievor has been guilty of a serious breach of the Criminal Code, thus rendering his conduct injurious to the general reputation of the Company and its employees
5. places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.”

Employers may want to consider including the Millhaven criteria in “Conduct and Behaviour” policies so that employees know the risks of such off-duty conduct.

In addition to weighing any negative effects on the employer, employers, of course, must prioritize the safety of the public, its clients, customers or other employees in cases where the employee’s off-duty conduct suggests some risk to others, especially where vulnerable populations are concerned, and be prepared to act where real risk exists.

Employers should be careful, however, to not impose personal morals or value systems on employees and their conduct. With workplaces made up of increasingly diverse populations from diverse cultures, what is “immoral” in one culture may be perfectly acceptable behaviour in another.

Employers should review or revise policies such as Conduct and Behaviour, Workplace Harassment, and Violence in the Workplace with the above-noted considerations in mind.

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