Whether it is drunken misadventures going viral on the internet, or hostile and negative social media rants, the nagging question remains; can an employer terminate an employee for “just cause” for the employee’s off-duty conduct?
The short answer is, it depends. It depends on:
- the type of conduct;
- the proximity of the conduct to the employer and its representation of the employer;
- the circumstances surrounding the conduct; and
- the proportionality of the conduct to the employment relationship.
While that in of itself is far from helpful, it is useful to look at:
- what happened;
- when it happened;
- whether the employee was representing the employer in some capacity at the time of the incident;
- whether the public image of the employer would or could have been irreparably damaged by the incident; and
- whether the conduct attracted criminal charges.
The Key is Proportionality
Was the employee’s conduct of such a nature that it irreparably damaged the employment relationship or caused significant damage to the reputation of the employer?
Take for example, the case of Klonteig v. District of West Kelowna, 2018 BCSC 124. In this case an off-duty fire fighter was arrested for driving under the influence in a fire department vehicle. While on the surface an employer may consider that this would be “just cause” for termination, the court disagreed, maintaining that the incident drew little or no attention by the public and other firefighters. The fire department vehicle, when seized, was unmarked and unidentifiable as a fire department vehicle, and the fire fighter had an exemplary service and performance history over a period of 16 years. The court held that the firefighter had been wrongfully terminated on the basis of his off-duty conduct and awarded damages for wrongful termination.
One Strike and You’re Out
However, the outcome is very different in the case of a drunken Blue Jays fan throwing a can of beer at a Baltimore Orioles player in 2016 that went viral online, may attribute his off-duty conduct to his termination as a sports copy editor at Postmedia, according to the Globe and Mail. While Postmedia would not confirm his termination as being with or without “just cause”, it is clear that most “companies increasingly don’t want to be associated with employees whose behaviour, even [while] off duty, reflects badly on them.” Termination of employment may be “inevitable because no employer is going to retain an employee who’s a public embarrassment.”
An employer is permitted by law to terminate the employment of any employee; the only real question is whether the employer is required to provide notice, pay in lieu of notice or no notice to the employee. If the off-duty conduct is sufficiently agregious to fundamentally violate the basic terms of employment, then an employer may have “just cause” to terminate the employee’s employment without notice to the employee.
Off Duty Activity, Termination and Just Cause
What does this mean for employees? It means that even one misadventure while off-duty could result in termination of your employment with or without “just cause”. While no one is perfect, it is important for employees to realize that in a day of cell phone video, You Tube, Facebook and Twitter, the expectation of privacy is diminished significantly and even off-duty conduct can be captured for the world to see, including your employer.
For an employer, it is important to safeguard its reputation and be cognizant that negative publicity attracted by the off-duty conduct of an employee may irreparably harm their current and future business. Not all off-duty conduct will justify “just cause” for termination, so it is important to speak with an employment law lawyer as soon as off-duty conduct becomes known so damage control can begin immediately.
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