Off-duty conduct of employees has been a hot topic in the news
recently. In the age of round-the-clock social media,
inappropriate employee conduct can have far-reaching effects on an
employer's brand and reputation. Employers often face
significant public pressure to terminate an employee based on
off-duty conduct, but concerns arise when terminations are
unwarranted and may result in grievances (in unionized
environments) or wrongful termination lawsuits (in non-unionized
The recent case of Union of Public Employees, Local 4400 v.
Toronto District School Board, 2015 CarswellOnt 6561 provides
an example of off-duty conduct which resulted in
In September 2012, the greivor attended a Toronto District
School Board (TBSB) school – off duty - to pick up her 13
year-old daughter. When she arrived, the grievor thought that
a 14 year-old male student had been bullying her daughter. An
altercation ensued, which was recorded by student bystanders and
was subsequently uploaded to You Tube. The video shows the
grievor insisting the male student apologize to her daughter,
yelling inappropriate comments and obscenities at him, and telling
him she works for the TDSB and can find out anything she wants to
find out about him.
The employer dismissed the grievor on the basis that she had
breached its employment policies, one of which specifically
provided that it is unacceptable for an employee to insult, degrade
or direct demeaning comments to a child. The union grieved
the dismissal, arguing that the altercation occurred when the
grievor was off duty and that the employer has no jurisdiction or
authority over what employees do in their private lives.
The onus was on the employer to demonstrate that discipline for
off-duty conduct was warranted. On the facts of the case, the
arbitrator accepted the employer's position that the
grievor's conduct clearly harmed the TDSB's reputation and
as such discipline was appropriate (Millhaven Fibres Ltd.
Millhaven Works, and Oil, Chemical and Atomic Workers Int'l
Union, Local9-670 (1967)). As to whether
dismissal was the appropriate form of discipline, the arbitrator
considered the fact that the grievor had identified herself as a
TDSB employee and directed vulgar and profane language at a TDSB
student on TDSB property. Clearly, the grievor's conduct
was substantially connected to her employment and impacted the
TDSB's reputation for those who saw or heard about the
Lessons for Employers:
The test for determining whether termination is justified varies
slightly depending on whether or not the workplace is unionized;
however, the overall factors to be considered are similar.
Generally, employers must show a link between the off-duty conduct
and the workplace. For example, that the off-duty conduct has
significantly affected employer's ability to manage the
operation or workforce, or that it has harmed the general
reputation of the business.
In an effort to prevent such situations, expectations for
off-duty conduct should be clearly set out in employment policies,
along with consequences for conduct that is potentially damaging to
the employer's brand and reputation. Employers should
incorporate such policies into employment agreements, or have the
employee sign off on the policies or codes of conduct.
Policies should also address and describe the limitations for
use of social media for both personal and professional
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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