As we all know, life’s events are constantly being photographed, posted, tweeted, and shared. It seems that keeping our private lives private, has become less and less of a reality as the years go by. As a result, keeping a separation between employees “on-duty conduct” and “off-duty conduct” has been more difficult to do as employees’ actions are displayed on our screens. If an employer takes issue with the actions of an employee, at what point can they rely on this off-duty conduct to terminate employment? Can they do so for cause?
This question came to mind for me this past winter as the Freedom Convoy rolled into our Nation’s Capital, attracting millions of dollars through online crowdfunding sites, such as GiveSendGo. The protest was quickly referred to as an “illegal occupation”, disrupting businesses, traffic and residents in Ottawa for the better part of a month. News outlets began airing stories of business owners, police officers and government workers (even a staffer for Ontario’s Solicitor General), who had allegedly contributed to these online funds, by tracing leaked donor lists with their own social media posts or publicly available salary disclosure lists. Videos of police officers appearing to make sympathetic or even supportive comments of the protesters were shared online. If these allegations were true, what rights would those employers have to terminate the employment of these individuals?
Employers have much more discretion if they are opting to terminate their non-unionized employees without cause. If employees are unionized or the employer is looking to terminate a non-unionized employee for cause, decision makers will require a connection between the off-duty conduct and the employment relationship, by looking at factors such as:
- the degree of moral reprehensibility of the conduct (is there a criminal charge/conviction? administrative penalty? civil claim?);
- does the conduct detrimentally impact the employer’s reputation (is the public aware of the misconduct)?
- does the conduct render the employee unable to properly discharge their employment obligations (is the employee’s role administrative or public-facing? what is the degree of public trust and confidence required for the employee’s role?)
- has the conduct caused other employees to refuse to work with the employee (is there peer support of the employee or a lack of it)?
- has the conduct hindered the employer’s ability to effectively manage and direct the production process?
The employer will also need to establish that a termination for cause is the appropriate and most proportionally reasonable step to take, given all of the circumstances, such as the length of employment, the position of the employee, whether there is any record of discipline and the extent of it, and whether the employee has acknowledged and taken responsibility for their actions.
Applying these concepts to the Freedom Convoy, it is likely that factors such as the workplace industry, the position held by the employee, the stage of the protest/occupation when the conduct occurred, what exactly the conduct was and how identifiable the conduct was to the employer would all factor into this analysis.
It was reported that internal investigations are underway by the OPP into members’ donations to the fund. Weighing the conduct against the outcome is a balancing act. As an OPP spokesperson stated, its members “…have a responsibility to demonstrate neutrality and remain non-partisan. Any demonstration or expression of views and opinions that may be interpreted as condoning illegal activity is in direct opposition to the OPP’s values and mandate”.1
If you are an employer contemplating termination of an employee for cause, in relation to their off-duty conduct (or any conduct for that matter!), ensure you conduct a proper investigation into the concerns, let the employee respond to those concerns and ensure you have a factual basis to consider terminating for cause. Once you have made a factual finding as to what occurred, assess the conduct’s implications on your business and reputation and decide what response is appropriate in the circumstances.
Employers should also ensure they have workplace policies that address social media use and codes of conduct, so that employees have notice of what is expected of them and the consequences for violating such policies.
If you have any questions or require any assistance with these kind of matters, please feel free to reach out to any of the lawyers in Siskinds’ Labour & Employment Group.