Canada: Off-Duty Misconduct: Criminal Charges Alone Are Not Just Cause For Dismissal

Last Updated: May 4 2016
Article by Stefanie Di Francesco

Employers have a management right to impose reasonable rules to govern conduct in the workplace and to discipline and discharge employees who break those rules. When an employee is guilty of serious workplace misconduct, the law also recognizes the employer's right to dismiss the employee for just cause. But what about off-duty conduct? Does unsavoury off-duty conduct amount to just cause for dismissal? What if the off-duty conduct involves serious criminal charges?

In Merritt v Tigercat Industries, the Ontario Superior Court of Justice considered these questions and found that criminal charges for off-duty conduct alone are not grounds to dismiss an employee for just cause. Consequently, the employer was ordered to pay wrongful dismissal damages equal to 10 months' wages, in the amount of almost $42,000.00.

The Facts

Keith Merritt was 67 years of age and was employed by Tigercat Industries Inc. as a general labourer. Tigercat has production facilities in several Ontario municipalities, including Paris and Cambridge.

In February 2015, Mr. Merritt was arrested at Tigercat's Paris facility and was charged with two counts of sexual assault against minors. Tigercat met with Mr. Merritt the following day, but Mr. Merritt refused to discuss the criminal charges, simply advising that the alleged events did not occur in the workplace and did not involve any Tigercat employees. Mr. Merritt was asked to resign, but refused. Instead, Mr. Merritt agreed to take a two week leave of absence.

Upon his return, Mr. Merritt was reassigned to the Cambridge facility. A female Tigercat employee raised concerns about working in close proximity with Mr. Merritt. The employee told Tigercat that Mr. Merritt was a distant relative and that she used to visit Mr. Merritt with her family. The female employee alleged that she stopped visiting Mr. Merritt because he made inappropriate sexual comments and advances toward her.

Tigercat met with Mr. Merritt and raised concern that a female Tigercat employee was involved in the criminal charges. Mr. Merritt again responded by saying that no Tigercat employees were involved in the criminal charges. Without conducting any further internal investigations, Tigercat dismissed Mr. Merritt for just cause. Mr. Merritt sued Tigercat for wrongful dismissal.

The Law

The Court confirmed that criminal charges for off-duty conduct alone do not constitute just cause for dismissal. In order for off-duty conduct to constitute just cause for dismissal, there must be a justifiable connection between the off-duty conduct and the employer or the nature of employment.

The Court also confirmed that the onus is on the employer to show that:

  • the conduct of the employee harms the employer's reputation or product;
  • the employee's behaviour renders the employee unable to perform his duties satisfactory;
  • the employee's behaviour leads to refusal, reluctance or inability of the other employees to work with him;
  • the employee has been guilty of a serious breach of the Criminal Code, which renders his conduct injurious to the general reputation of the employer and its employees; and
  • continuing to employ the employee will cause difficulty in the way the employer properly carries out the function of efficiently managing its work and efficiently directing its work force.

The Findings

The Court found as follows:

  • Tigercat did not or would suffer reputational harm as Mr. Merritt was a general labourer, not an executive, supervisor, or manager.
  • Mr. Merritt was capable of performing his duties as evidenced by the fact that Tigercat reassigned him to perform his duties at the Cambridge location.
  • No employees of Tigercat were involved in the criminal charges. If a Tigercat employee was reluctant to work in close proximity with Mr. Merritt for reasons unrelated to the criminal charges, Tigercat had a duty to accommodate both employees.
  • Mr. Merrritt had not been found guilty of a criminal offense as the criminal trial had not yet occurred. Accordingly, Mr. Merritt was entitled to the presumption of innocence.
  • Tigercat's reassignment of Mr. Merritt following his two week leave of absence demonstrated that Tigercat's continued employment of Mr. Merritt did not inhibit Tigercat's ability to manage its work and workforce.

Lessons for Employers

This decision highlights for employers the importance of conducting a proper investigation of an employee's alleged off-duty misconduct before undertaking disciplinary action or dismissing the employee. Taking the necessary precautions, documenting the investigation, and providing the employee with the requisite due process will increase the employer's prospects of having a dismissal upheld by an adjudicator.

Upon completion of a proper investigation, employers should make a determination as to whether the employee's off duty misconduct warrants discipline and, if so, what measure of discipline is appropriate in the circumstances. Employers should ensure that the disciplinary action undertaken is principled and consistent with the employer's policies, including Codes of Conduct and off-duty misconduct policies.

Finally, employers should recall that most employees in Canada can be dismissed at any time so long as they are provided with sufficient notice or pay in lieu of notice. As a result, an employer who does not approve of an employee's off duty conduct (so long as the disapproval does not relate to grounds protected by Human Rights legislation) may dismiss the employee as a result of off-duty misconduct on a without cause basis.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2016

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Stefanie Di Francesco
Similar Articles
Relevancy Powered by MondaqAI
Rudner Law
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Rudner Law
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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