InFocus: Off Duty Conduct

Off-duty conduct catches the eyes of HR

Off-duty conduct catches the eyes of HR

By John Tenpenny

Firing an employee for off-duty conduct is an issue that rarely came up before the advent of social media and the proliferation of Smartphone videos posted on YouTube. However, with recent examples causing Canadian employers concern about how employee behaviour will reflect on their reputations, the issue is now front and centre.

Recent dismissals for off-duty conduct have included an employee of Hyrdro One being let go after making derogatory remarks towards a female television reporter live on-air, an Ontario Hockey League referee being suspended after posting insulting comments about the women of Sault Ste. Marie on Twitter, and of course, the case of CBC Radio personality Jian Ghomeshi.

“Employers are generally very concerned about off-duty conduct of its employees where that conduct detrimentally impacts their business,” says lawyer Lorenzo Lisi, Practice Group Leader of the labour & employment team at Aird & Berlis LLP.
When an employee crosses the line with their off-duty conduct, employers need to know if the behaviour is cause for termination. The answer, according to the law firm of Aird & Berlis LLP, is “it depends.” To do so they must demonstrate that the employee’s off-duty conduct: harms the employer’s reputation or product; renders the employee unable to perform his or her duties satisfactorily; leads to refusal, reluctance or inability of the other employees to work with him or her; or makes it difficult for the employer to efficiently manage its work and workforce.

Given this new reality, employers are looking for ways to mitigate the risks involved with off-duty conduct and assist employees in understanding that their conduct has much larger ramifications than they might think. And overreacting by banning the use of social media is not the answer.

“Social Media provides a platform for employees to express themselves while off-duty, which can (either intentionally or inadvertently) reflect on their employer,” says Lisi. “The bigger issue for employers is that when such comments/pictures/statements occur on social media (like the employee at the Toronto FC game), their impact can be considerable due to their rapid availability and accessibility on social media.”

Legal specialists like Lisi suggest employers create policies with respect to employee use of social media, both personally and professionally, and ensure that employees are trained on these policies and understand the consequences, especially with respect to their use of Facebook, Twitter, Instagram, LinkedIn and other social media platforms.

As well, policies with respect to employees’ use of work-related technology and email should be reviewed and updated if necessary. Clear guidelines, procedures and policies should be put in place with respect to appropriate workplace behaviour. Remember to reference these policies in employment agreements and make it clear that conforming with these policies is a condition of employment.

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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.