By now, most of you will be familiar with the Ashley Madison
scandal where hackers revealed personal information of customers of
the infamous website which creates a virtual marketplace for those
interested in engaging in extra-marital affairs. While the focus of
the media frenzy has largely been on celebrities and members with
government affiliations, the site could be linked to virtually any
employer. So what tools do employers have for dealing with any
association (via an employee) to this or similar websites ? Could
an employee be fired for participating in this site? The answer is
of course: 'it depends' .
A helpful starting place is to look at how the courts have
treated off-duty conduct of employees. In the foundational case of
Re Millhaven Fibres Ltd v Atomic Workers Int'l Union, Local
9-670  OLAA No 4, the [Tribunal] pronounced the
... if discharge is to be sustained on the basis of a
justifiable reasons arising out of conduct away from the place of
work, there is an onus on the Company to show that:
the conduct of the grievor harms the
Company' s reputation or product;
the grievor' s behaviour renders
the employee unable to perform his [or her] duties
the grievor' s behaviour leads to
refusal, reluctance or inability of the other employees to work
the grievor 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
[the conduct] places difficulty in
the way of the Company properly carrying out its functions of
efficiently managing its Works and efficiently directing its
The subsequent jurisprudence in this area has generally held
that an employer need not demonstrate all of the above-noted
criteria. Any one factor may be sufficient to warrant discipline or
dismissal, although the connection to the workplace should be
"real and material" . Further, an employer does not need
to demonstrate actual harm to their reputation, however the
concerns of the employer "must be both substantial and
In the recent case of City of Toronto v The Toronto
Professional Fire Fighters' Association, Local 3888,
Arbitrator Elaine Newman confirmed that the basic question to be
applied is whether "a reasonable and fair-minded member of the
public, if apprised of all the facts, [would] consider that the
grievor' s continued employment would so damage the reputation
of the Employer as to render that employment untenable?"
In assessing the reputational risk posed by an employee' s
conduct, a court or tribunal would likely consider a multitude of
factors including the nature of the business and the specific role
of the employee in question.
Although, in this specific case, details from the hack make it
possible to establish a link between the individual and employer
(for example, through the use of an employee' s work email),
this may or may not pose a risk to the enterprise and its ability
to carry on business.
Additionally, unlike cases where an employee has disseminated
harmful comments on a social media website such as facebook or
twitter, Ashley Madison was a supposedly secure website. The
analysis may then become whether there is a reasonable expectation
of privacy which the employee was justified in relying on.
Lastly, case law in this area has also established that in
assessing the proper penalty in these cases, an employee' s
apology or candour, and any actions taken after their conduct was
revealed may be a mitigating factor. As such, evidence of an
employee immediately deleting their profile from the website, or
taking steps to mitigate any reputational harm to the employer,
could be relevant factor.
In conclusion, there is a substantial amount of grey in this
area of the law, especially in its application to this scenario. In
light of the above discussion, where an employer is faced with
potential reputational harm from an employee' s off-duty
conduct, they should engage in a thorough analysis of the actions
taken by the employee, and its potential effects, before coming to
any decision .
* Editor's note : Christine correctly
pointed out that the proper spelling of this phrase is "just
deserts" from the verb "to deserve". But the Editor
took an editorial decision to use "desserts", to avoid
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