While courts have often held there may be just cause for
termination based on certain off duty conduct, a recent case has
gone the other way. Recently, in Merritt v.Tigercat
Industries, 2016 ONSC 1214 (CanLII), the Ontario Superior Court of Justice reinforced
the notion that an employer cannot rely on the mere existence of
criminal charges to justify a just cause termination and that even
a conviction itself may not be sufficient unless the crime has some
connection with or impact on the workplace.
In this case, the employer had terminated the employee when they
learned that he had been charged with two counts of sexual assault
against a minor. Despite the fact that these charges were
particularly awful, the Court granted the employee's motion for
wrongful dismissal as the alleged events did not occur in the
workplace nor involve any other employees.
That is not to say that an employee's improper conduct will
only justify termination with cause if it occurs in the workplace
or involves other employees. In fact, the Court provided a list of
more ambiguous circumstances that may justify termination with
cause including circumstances where the conduct harms the
employer's reputation or product. In this case, the employer
provided no evidence as to damage or potential damage to the its
Note, none of this is to say that it wasn't the correct
business decision to terminate the employee in these circumstances.
However, employers should understand that they may nonetheless be
held liable for reasonable notice (and potential punitive damages
if the termination is handled improperly) if cause can't be
proven and should consider alternatives including placing the
employee on leave pending the outcome of a criminal case.
Written with the assistance of Nader Hasan, articling
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