InFocus: Off Duty Conduct

How to dismiss for off-duty conduct

How to dismiss for off-duty conduct

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.

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Aird & Berlis LLP is a leading Canadian law firm based in Toronto, serving clients across Canada and globally. The firm’s practice encompasses all principal areas of business law.

The Aird & Berlis LLP Labour & Employment Group provides practical and cost-effective advice to employers on a broad spectrum of workplace law matters. Our breadth of expertise ranges from labour, employment and human rights to occupational health and safety. We provide employment counsel in unionized and non‐unionized environments, to employers in both the private and public sectors. Our specialized team works with employers in various industries to navigate regulations, manage risks and ensure compliance.

We are well-versed in advising on collective bargaining, union-organizing defence strategies, strikes and lock outs, grievances and terminations, union certification and investigations, employment agreements, wrongful dismissal, privacy and access to information, pension and benefits, pay equity and compensation, severance, recruitment, employment standards and insurance, workplace audits, unfair competition, fiduciary duties, enforceability of restrictive covenants, human rights complaints as well as the development, interpretation and application of forward thinking workplace policies and procedures. We also advise employers on issues arising in commercial transactions, including acquisitions, divestitures and restructurings.

Correspondingly, our lawyers regularly represent employers before various courts and tribunals, including the Ontario Labour Relations Board, the Canada Industrial Relations Board, the Ontario Workplace Safety and Insurance Board, the Ontario Workplace Safety and Insurance Appeals Tribunal, the Ontario Human Rights Commission, the Pay Equity Hearing Tribunal, the Ontario Court of Justice, and the Superior Court of Justice.