By Olivia D’Orazio
Is it better to let an employ go with or without cause for off-duty conduct concerns?
The question has traditionally been a moot point for most sectors of the Canadian economy, but increasingly, no employer is immune.
“It is probably fair to say that private sector employers are more sensitive to social media/off-duty concerns, since there is the risk improper conduct can impact their business/brand,” says Lorenzo Lisi, Practice Group Leader of the Labour & Employment team at Aird & Berlis LLP. “Retailers in particular can be very specific with their policies and concerns.
“However, it is fair to say that even public sector (governmental) employers have concerns where off-duty conduct may be contrary to policies or reflect poorly on the public sector body.”
In retail, where off-duty conduct concerns crop up most, it may be more expedient to let go without cause. But there are key considerations for all employers.
Summary termination, where the employee is dismissed without notice or pay in lieu, must meet certain factors in order to keep from treading on a worker’s constitutional rights.
Employers must have a code of conduct or workplace policies that cover the misconduct in question, and must advise employees of those policies, such as through training on the code of conduct. The employer must also consistently enforce those policies.
The employee’s position within the company will also be considered, as well as his or her responsibility within the company and whether or not the employee interacted with customers or was considered a “face of the company.”
Invariably, the misconduct itself as well as the number of occurrences must be considered.
Finally, the employer’s reputation will be part of the deliberations process, and whether or not the employee’s misconduct had or could have a negative impact on that reputation.