Canada: When Can You Fire An Employee For Off-Duty Misconduct Or Vulgarity?

Last Updated: August 26 2015
Article by Alan M. Riddell and Kyle Van Schie

When do an employee's nasty or vulgar remarks or social media posts, undertaken online in the privacy of his own home, or live at some off-duty social event or sporting activity, entitle an employer to dismiss him for just cause? This question is particularly topical in light of the intense national media attention recently directed at Hydro One's abrupt dismissal of Shawn Simoes, the now infamous Hydro One employee who made lewd and offensive comments to a female reporter at a Toronto FC soccer game in early May of this year. 

Recent developments in the law:

On this issue, Canadian employment law appears to be in the midst of rapid and draconian change.  Up until quite recently, it was all but impossible for an employer to fire an employee for cause for any objectionable off-duty remarks, unless it could be shown that those remarks irrevocably undermined his ongoing future ability to do his job, or constituted a serious and intentional attempt to damage his employer's reputation. Barring those extreme circumstances, off-duty employees were generally free to say, or write, whatever they wanted, to whomever they pleased, so long as they refrained from doing so while at work.  

No longer.  In the last few years there has been dramatic change on this front.  With the rise of social media, the potential impact which an employee's off-duty comments or posts can have on your organization's public reputation has escalated enormously. More and more, courts are beginning to recognize that the misbehavior of off-duty employees, while seemingly irrelevant to their on-duty work performance, can nonetheless prejudicially affect their employer's public 'brand', and thereby constitute just cause for dismissal.

Today, many HR professionals still assume that an employee cannot generally be punished for misconduct which he carries out while attending an off-duty event, or writing online in the privacy of his own home, and that such misconduct can only be sanctioned if it wholly undermines confidence in the employees' ability to do his work. This assumption is now increasingly outdated, if not wrong. In cases where the employer's 'brand' is significantly impacted, employers currently have the authority to dismiss, employees, even when their actions outside the workplace are totally unrelated to, and have absolutely no objective impact on, their actual ability to do their job. The recent case of Shawn Simoes is just the latest example in an increasing trend where employers are successfully invoking the off-duty, but much publicized, bad behavior of their employees, to justify their termination.

Current law in Ontario on terminating employees for off-duty misconduct:

Employees have long owed a legal duty of good faith toward their employer which, according to the courts, requires them to avoid off-duty behavior that would obviously cause significant harm to their employer. But exactly how bad does the misbehavior have to be for it to amount to just cause for dismissal?

As stated only last year in The City of Toronto v Toronto Professional Fire Fighters' Association, Local 3888 (Nov. 2014), the applicable test for determining whether off-duty misconduct warrants dismissal is whether "a reasonable and fair-minded member of the public, if apprised of all the facts, would consider that the [employee's] continued employment would so damage the reputation of the employer as to render that employment untenable."

In the City of Toronto case, the arbitrator upheld the termination of a firefighter for sending out tweets which denigrated women, disabled persons and minorities, and which were reported in The National Post. The arbitrator later ruled that the tweets violated the Ontario Human Rights Code and a number of the employer's own written HR policies.

In recent years, Ontario courts and arbitrators have identified several factors to be used to determine the lawfulness of terminating an employee for his off-duty misconduct, including (i) the nature and seniority of the employee's position within the organization; (ii) the employer's reasonable expectations of how the employee would behave; (iii) the seriousness of the employees' off-duty misconduct; and (iv) the actual and potential harm of such misconduct to the employer's business and reputation.

What's more is that the potential damage to the employer's reputation need not even be proven through direct evidence. It is enough for the employer to establish that the employee's misconduct is of such magnitude as to have the potential to impact negatively on the employer's public reputation or 'brand'.

When determining whether or not off-duty misconduct amounts to just cause for dismissal, courts and arbitrators often refer to the test enunciated in Millhaven Fibres Ltd. v Oil, Chemical and Atomic Workers I.U Loc 9-670, which requires that the employer show that the off-duty misconduct (i) harms the company's reputation or product, (ii) renders the employee unable to perform his duties satisfactorily, (iii) causes other employees to refuse or hesitate to work with the offending employee, (iv) contravenes the Criminal Code, or Human Rights Code, or (v) seriously undermines the employer's ability to efficiently manage its operations and workforce. Evidence of the breach of any single one of these 5 factors can be sufficient to amount to just cause for dismissal.

What precautions employers should take to maximize their future ability to punish offending employees:

In the new age of social media, off-duty misconduct has the potential to do immense damage to your organization's public brand and its reputation with clients and suppliers. Sometimes the best way of containing that damage, and of restoring public faith in your organization, is to immediately, and publicly, fire the offending employee, just as Hydro One decided to do in the case of Shawn Simoes. In so doing, your organization sends a clear message to its customer-base that it strongly disapproves of such misbehavior before that misbehavior has time to seep into the public's consciousness and taint your 'brand'.

In order to increase your ability to discipline employees who engage in off-duty misconduct, you should consider taking the following precautions:

  • Draft a Code of Conduct which prohibits off-duty misconduct: Although most existing Codes of Conduct do not cover off-duty conduct, all Ontario employers would now be wise to adopt a written code which expressly bans any form of off-duty harassment or other misbehaviour which could potentially be injurious to its public reputation. An employer who takes this precaution, as Hydro One had previously done prior to the Simoes incident, is far more likely to see an Ontario court or tribunal later uphold its disciplinary sanctions, when these are challenged by the offending employee;
  • Amend your employment agreement template to include a 'morality' clause: As a further measure of protection, a prudent employer may wish to amend its employment agreement templates to provide that its employees, even when off-duty, must conform to certain behavioral norms in order to safeguard the employer's public image, and to specify that the first reported failure to do so will constitute just cause for immediate dismissal.  Doing so will not only later make it far more difficult for the offending employee to successfully challenge his or her termination but will also ultimately serve to incite all your employees to be more careful about engaging in any off-duty misbehavior which could be publicized and damaging to your company and 'brand'.

In prohibiting the more egregious forms of off-duty misbehaviour, your organization will need to strike a careful balance between forestalling potential damage to its public reputation and 'brand', in an age of increased publicity through social media, and the legitimate desire of your staff to preserve some degree of continued privacy in their personal lives.  Understandably, few employees will be prepared to confer on their employer an untrammelled right to police all of his or her private, off-duty activities. Soloway Wright LLP's employment lawyers can assist you in striking the right balance between these two competing interests, thanks in part to their unique experience in working closely with both management and employees.

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 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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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