Canada: Off The Clock Misconduct: When Can You Terminate?

Last Updated: July 7 2015
Article by Catrina Webster

In Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CarswellOnt 6561, an employee's off-duty conduct resulted in dismissal. Sylvia Hatzantonis, an employee of Toronto District School Board ("TDSB"), was terminated for:

  • Engaging in comment and conduct inconsistent with that expected of a TDSB employee;
  • Attempting to conceal her conduct by soliciting and counselling others to provide false evidence; and 
  • Dishonesty and breach of trust during the TDSB's investigation in an attempt to mislead.

Background: The Off-Duty Misconduct 

Ms. Hatzantonis attended a TDSB school in order to pick up her 13-year-old daughter. On arriving and finding her daughter crying, an altercation began between Ms. Hatzantonis and EM, a 14-year-old student who was believed to have upset her daughter.

A spectator had recorded a video capturing Ms. Hatzantonis demanding that EM apologize to her daughter, shouting and swearing at EM, threatening to tell EM's parents about drug use and sex, telling EM that she works for the TDSB and can find out anything she wants about him and shouting insults about EM's mother as he walked away.

TDSB became aware that the video was posted on YouTube and consequently placed Ms. Hatzantonis on home assignment pending an investigation. Ms. Hatzantonis was eventually terminated and the union alleged it was an unjust dismissal. 

Subsequently, the Crown brought criminal charges against Ms. Hatzantonis including charges for uttering death threats, intimidation, assault, and causing a disturbance. Following the completion of two anger management courses and payment of a fine, the criminal charges were withdrawn and Ms. Hatzantonis agreed to a peace bond. 

Harm to the Reputation of the Employer

In order for an employer to be warranted in their discipline of off-duty conduct there has to be a real and material connection between the employee's off-duty conduct and the employment. 

In Ms. Hatzantonis' case, it was found that her conduct had a sufficient nexus to her employment and thereby worthy of sanction because she identified herself as an employee, was on TDSB property, the target of the abuse was a TDSB student and she used her position as a TDSB employee to threaten the student.

In Millhaven Fibres Ltd. v O.C.A.W., Local 9-670, 1967 CarswellOnt 789 (Ont. Arb.) it was determined that an employer must establish at least one of the following before disciplining or terminating an employee for off-duty conduct:

  1. the conduct of the employee harms the company's reputation or product;
  2. the employee's behaviour renders the employee unable to perform his duties satisfactorily;
  3. the employee's behaviour leads to refusal, reluctance or inability of other employees to work with him or her;
  4. the employee has been guilty of a serious breach of the Criminal Code, and thus rendering the employee's conduct injurious to the general reputation of the company and its employees;
  5. the employee's conduct places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

Ms. Hatzantonis's  conduct was found to have harmed the reputation of TDSB. Where this has been established, courts or tribunals, will examine the nature and circumstances of the misconduct to determine the appropriate disciplinary measure.

In Ms. Hatzantonis' case, while there were some mitigating factors, termination was found to be the appropriate discipline in part because she was dishonest in her description of the events, attempted to minimize the seriousness of her actions and attempted to conceal her conduct by soliciting and counselling students to provide false evidence.

Implementing an Effective Off-Duty Misconduct Policy

In this digital age, it is more likely than ever that an employee will be caught engaging in off-duty misconduct. However, not every incident of off-duty misconduct constitutes just cause for termination. A balance must be reached between the private lives of employees and the reputation of employers.

A high burden must be met in order to discipline or terminate an employee for off-duty conduct. However, many of the best practices for misconduct in the workplace should be applied to off-duty misconduct. Employers should be developing an employment policy that includes specific off-duty and social media guidelines, disseminate the policy to all employees and ensure they understand that employment misconduct can apply to situations where they are not at work including online, and consider consulting with legal counsel in developing and implementing a policy.

In the event that an employee's off-duty misconduct comes to the attention of an employer it is best to engage the procedures swiftly and confidentially and a workplace investigation may be necessary. Having clear guidelines and expectations of employees for off-duty conduct is the best way to prevent such incidents from impacting your workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions