Lawful termination for off-the-clock insults

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An employer’s decision to dismiss a worker for off-duty conduct has been upheld in an Ontario court, suggesting yet again that out-of-work misdemeanours regularly warrant dismissal.

In this case, an employee for the Toronto District School Board (TDSB) visited a component school to pick up her teenage daughter. While she was there, the off-duty employee launched a tirade of vitriol at a 14-year-old student she thought had been bullying her daughter.

During the verbal attack – which was filmed and subsequently uploaded to Facebook – the woman identified herself as a TDSB employee and warned the young student that she could find out everything about him.

“In the age of round-the-clock social media, inappropriate employee conduct can have far-reaching effects on an employer's brand and reputation,” explains labour lawyer Meaghan Hughes – which is exactly why the TDSB was well within its rights to terminate to verbally abusive worker.

According to Hughes, the test for determining whether termination is justified varies depending on if the workplace is unionized or not but both environments largely come down to just one thing.

“Generally, employers must show a link between the off-duty conduct and the workplace,” reveals Hughes. “For example, that the off-duty conduct has significantly affected the employer’s ability to manage the operation or workforce, or that it has harmed the general reputation of the business.”

Although an arbitrator upheld the TDSB’s decision to terminate, the case was still dragged through courts – to prevent this from happening, Hughes says employers should plan ahead.

“Expectations for off-duty conduct should be clearly set out in employment policies, along with consequences for conduct that is potentially damaging to the employer's brand and reputation,” advises Hughes.

“Employers should incorporate such policies into employment agreements, or have the employee sign off on the policies or codes of conduct,” she continues, before adding that policies should also “address and describe” the appropriate use of social media for both personal and professional accounts.

Read Hughes’ full and original article here.

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