When can an Employee’s Off-Duty Conduct give rise to disciplinary action?

An employee may be disciplined, and even terminated for cause, where his or her off-duty conduct interferes with and prejudices the employer’s business interests and operations, or its reputation with the public.

The improper conduct need not take place on the employer’s premises. Rather, the “workplace” may extend to include business or social events that are connected to the employment relationship. For instance, incidents of bullying or sexual harassment involving employees would be grounds for discipline, up to and including dismissal, regardless of whether such occurs on company premises or elsewhere.

In certain circumstances, an employee may be disciplined for off-duty conduct that has no connection to the workplace, provided that it is prejudicial to the employer’s interests. For example, the court has upheld the dismissal of an employee who was charged, but not yet convicted, of possession of child pornography on his home computer. The court considered the notoriety of his arrest in the community, and agreed that such was incompatible with the company’s reputation – a reputation which had been built up over a long period of time and was jealously protected.

However, dismissal would not be justified in every case in which an employee is charged or convicted of possession of child pornography or any other similar crime of moral turpitude. Rather, each case must be considered on its own unique set of facts. Important factors will include the degree of responsibility and role exercised by the employee, as well as the degree to which the company’s reputation is likely to be affected.

Many employees may not appreciate that they owe a duty of good faith and fidelity to their employer, or how such a duty may be breached, even by posting comments about their employer on social media. However, unwarranted criticism of their employer or one of their managers, particularly if done publicly, may be irreconcilable with continued employment.

It is well-established that inappropriate posts on social media, such as Facebook, can result in discipline or discharge, depending upon the severity of the postings. As with all discipline cases, much will depend on the specific facts. However, key factors in determining appropriate disciplinary action include the nature and frequency of the comments, and the impact such postings have on the affected individual(s) and/or the company.

Ultimately, the issue will be whether the comments have poisoned the workplace or damaged the employment relationship to the point that it would no longer be possible for the employee to work harmoniously and productively with other employees, or for the company. The employment relationship may also be irreparably harmed if the employee fails to cooperate with an investigation by the employer, or otherwise fails to take appropriate responsibility for his or her improper conduct.

This article is prepared for general information purposes only, and is not intended to be used as legal advice or opinion. If you have specific questions regarding the matters described above, please contact a lawyer for assistance.

Karin is a lawyer in the Litigation Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. She can be reached at 613.566.2860 or [email protected].