The Mayor of Toronto has been front-page news and fodder for
late-night monologues. Mr. Ford's conduct, and his judgment
generally, is being seriously questioned. And with good reason.
Video footage of him allegedly consuming illegal drugs, rants about
wanting to commit assault, and allegations of consorting with
prostitutes are just some of the issues Mr. Ford has had to
address. It seems that as a result of the legislative scheme
associated with his public office, all Toronto City Council could
do was resolve to ask Mr. Ford to take a leave of absence from his
role as mayor, which he declined to do.
For employees who don't have such protection under the law,
at what point can employers discipline or terminate an employee for
his or her off-duty conduct?
We have previously written about disciplining employees when
criminal charges are involved in relation to
off-duty impaired driving and the
Stanley Cup riots. The right to discipline for off-duty conduct
is even less clear where there are no criminal charges but there is
evidence of criminal behavior or other behavior that may negatively
impact the employer.
As a general rule, an employer has no jurisdiction over an
off-duty employee. However, there is an implied term in employment
contracts that the employee will not do anything which is
prejudicial or likely to be prejudicial to the reputation of the
employer. Therefore, an exception to the general rule exists where
the employer can show that its legitimate business interests are
negatively affected in some way by the employee's behaviour, or
there is a nexus created between the behavior and the
If such a connection exists, the employer may be in a position
to legitimately discipline or terminate the employee for their
off-duty conduct. The onus is always on the employer to meet the
high threshold for discipline or cause.
Some questions an employer should consider when examining
off-duty conduct are:
Does the conduct negatively affect the employer's
reputation or business (e.g. is there public video or photos of the
employee in uniform engaging in questionable conduct, is the
employee the face of a business or has the person otherwise been
identified as an employee of the business);
Does this conduct cause the employee to not fulfill his or her
employment obligations properly or create safety issues at work
(e.g. are the actions preventing the employee from completing his
or her tasks in a safe and satisfactory manner or do they create
safety issues for other employees);
Is the conduct somehow connected to the employee's
employment responsibilities in such a way that causes the employer
to lose trust in the employee or calls into question the
employee's ability to do his or her job (e.g. a security guard
who was caught looting during the riot, or a bank employee who was
caught stealing); and
Does this conduct cause other employees to refuse to engage or
work with this individual (e.g. an employee posts hate speech on
their private blog and another employee finds out about it and
refuses to work with him or her)?
Before terminating an employee for cause, employers should make
their own investigations into the alleged misconduct and consider
the particular employee in question. The overall context of the
employment relationship will be in issue.
Employers must also be aware of their obligations under the
Human Rights Code. If the employee is acting in a certain
way because of a drug or alcohol addiction, employers may have a
responsibility to accommodate the employee's disability. Given
the admissions of Mr. Ford, such a disability may be a factor in
Employers can also communicate through a Code of Conduct that it
will not tolerate Rob Ford-like antics. If appropriate, considering
the type of position, employers can also include a morality clause
in employment agreements.
As always, an employer can also choose to terminate an employee
on a without cause basis as long as it provides reasonable notice
in accordance with the employment agreement or common law.
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.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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