A few people have recently learned that publicly embarassing
yourself outside of work can have a serious impact at work. A Hydro
One employee was swiftly terminated following offensive statements made
to a news reporter. A TC Transcontinental employee was suspended with pay pending an investigation
following the public heckling of a female comedian. Does an
employer have the right to investigate your off-duty conduct? Where
is the line between your private and work life?
As non-unionized employers don't need "cause" to
terminate an employee, much of the case law has come from unionized
workplaces. Arbitrators have held that in order for an employer to
terminate an employee for off-duty conduct, there should be a
connection between the conduct and the workplace. In order to
establish this connection, decision makers have applied the
"Millhaven Factors" which were outlined in the seminal
case of Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic
Workers I.U. Loc. 9-670,  O.L.A.A. No. 4. The five factors are:
The conduct of the employee harms the
company's reputation or product;
The employee's behaviour renders
the employee unable to perform his duties satisfactorily;
The employee's behaviour leads to
refusal, reluctance or inability of the other employees to work
The employee has been guilty of a
serious breach of the Criminal Code and thus rendering his conduct
injurious to the general reputation of the company and its
Creates difficulty for the company to
properly carry out "its function of efficiently managing its
works and efficiently directing its working forces."
These factors have been applied in recent arbitral decisions to determine whether
an employer was justified in imposing discipline on an employee for
Although only proving one of these factors is required to
for an employer to justify termination, arbitrators have emphasized
that there can be a high threshold to meet. The interests of the
employee in the autonomy of their private affairs must be balanced with the employers desire to protect
their reputation and fellow workers. Arbitrators require a thorough
investigation to be completed by the employer
to substantiate claims under any of these factors.
In the Twitter age, an employee's off-duty conduct is more
likely to be broadcasted, and the continued rise of social media
makes it easier for an employee to be connected to their workplace.
Recent events serve as a cautionary tale for employees that
clocking out from the office doesn't necessarily disconnect
them from certain employment obligations.
This article was written with the assistance of Nicole
Buchanan, summer student.
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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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