Good Conduct is Never Off-Duty
/ Author: CLAC Staff
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Good Conduct is Never Off-Duty

Offensive or illegal behaviour outside of work can put your job on the line

What you do on your own time is your own business, right? Wrong. Some workers find out the hard way that their off-duty antics can have a big impact on their livelihood.

In 2015, a Hydro One employee was recorded making persistent obscene remarks to a female reporter at a Toronto FC soccer game. The recording was posted to social media and went viral. Two days later, the man was fired.

Some people were shocked by Hydro One’s response, suggesting the man was only exercising his freedom of speech. But freedom of speech doesn’t guarantee freedom from consequences, and it’s wise to know the difference between the two.

For the most part, employers do not have authority over what you do outside of working hours. But discipline or dismissal can be justified if your actions are seen to hurt your employer’s business in any of the following ways:

• Your conduct harms the company’s reputation or product.

• Your behaviour renders you unable to perform your duties satisfactorily.

• Your behaviour leads to the refusal, reluctance, or inability of other employees to work with you.

• You are guilty of a serious breach of the Criminal Code, which hurts the reputation of your employer and coworkers.

• Your conduct makes it difficult for the company to properly carry out its functions.

In all cases of discipline and firing for off-duty conduct, your employer must prove a clear connection between your actions and their business interests. A full investigation must prove that actual harm or risk was caused, and discipline must be proportional.

Behaviour on social media while off-duty can also warrant discipline. The opinions you post exist in the public domain where anyone can read them. Negative comments made about coworkers or management or offensive posts that name the company can result in discipline. For example, a government of Saskatchewan employee was disciplined after making bigoted comments about China on her personal Instagram account in 2020.

A worker who faces criminal charges or is convicted for off-duty conduct could be disciplined or fired. In these cases, arbitrators have concluded that there is a need to balance the employee’s interest in maintaining their livelihood with the employer’s interest in protecting their business.

Even workers who face criminal charges for on-duty conduct must be presumed innocent by employers while awaiting a verdict. For example, in the case of an x-ray technologist who was charged with sexually assaulting several patients, the employer reassigned the worker to lab duties away from patients while awaiting the outcome of a police investigation. Note that in the instance of reassigned duties, the employer is not obligated to create other work for the employee or supply training.

Employees facing charges or a conviction may also need to have their work accommodated if they face court-ordered restrictions, a licence suspension, or bail conditions. In more serious circumstances, employers may also suspend an accused employee without pay pending the outcome of the investigation or dismiss a convicted employee. The employer must prove that having the employee in the workplace presents a hardship to the business that could not be alleviated by measures such as increased supervision or job reassignment.

Sources: CLAC Research Team, hrreporter.com, cbc.ca, talentcanada.ca

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