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Dealing with Employees’ Off-Duty Conduct

By November 2, 2015October 21st, 2021Employment Law

Ever wonder how your employee’s conduct and behaviour (including social media involvement) AFTER they clock out affects you and your dental practice?  Want to know what you can do about it?  Read on…

In this blog, I will explore a few recent cases that have sparked public debate about off-duty conduct.  I will also give you some practical pointers on how to deal with incidents of off-duty conduct.

Recent Cases of Dismissal for Off-Duty Conduct

Educational Assistant Found Guilty of Sexual Assault – 2010

Zabar Moursalien, an educational assistant employed at the Perth Avenue Public School for over 10 years, was convicted of sexual assault on an adult female outside of a mall.  The incident took place because Mr. Moursalien mistook a pharmacy clerk’s social remarks to be flirtations and invitations, which they WERE NOT as it turned out.

Mr. Moursalien was an otherwise good employee without any blemishes on his record, but after the sexual assault conviction he was suspended by the board for 15 months and eventually, following an investigation, was terminated for cause.

Moursalien eventually filed a grievance with the Ontario Labour Arbitration Board and an arbitrator concluded that the employer was within its right to suspend the employee until it had a good idea about how and if the employee’s off-duty behaviour would affect his job performance.  However, the arbitrator concluded that the employer had no proper cause to fire the employee based on the following facts:

  • the incidents were not employment-related, and the arbitrator stated that “improper off-duty conduct does not automatically lead to a finding of just cause for discharge”;
  • medical reports showed that the employee was not likely to re-offend (in his personal or professional life);
  • there was no true damage to the reputation of the school because “a fair-minded and well-informed member of the public would recognize, on the basis of [the medical] evidence, that there is no reasonable likelihood of [Moursalien] posing a risk.”

Given the foregoing, the arbitrator reinstated Moursalien’s employment at Perth Avenue Public School.

Fire Fighters’ Tweets – 2013

In 2013, the National Post printed an article that uncovered two Toronto fire-fighters’ sexist tweets amidst the Toronto Fire Services’ campaign to recruit more women.  Some of the tweets included “Reject a woman and she will never let it go. One of the many defects of their kind.  Also weak arms” and “…would swat her in the back of the head been considered abuse or a way to reset the brain?”  You can read the full article here.

One month after the article was posted, both fire-fighters were terminated for violating the City’s social media policies and harming the reputation of the Toronto Fire Services (the “TFS“).

Lawaun Edwards was re-instated to his job as a firefighter by an arbitrator who determined that, although the “swat in the back of the head” tweet was inappropriate, termination was too harsh of a punishment.  The arbitrator made her decision, based in part on the fact that no one at the TFS or his 49 Twitter followers had ever complained about or objected to the tweets, that some of the female TFS workers who also followed him on Twitter had nothing but positive things to say about him and that TFS policy regarding the use of social media, although present, was not publicized well enough, especially considering the wide-spread use of such media.

The other firefighter, Matt Bowman, was not re-instated.  The arbitrator, in that case, made his decision based on the fact that there was more than one offensive tweet (in fact, his misconduct included racist tweets and comments as well as derogatory tweets about homeless people) violating not only the social media policy of the TFS but the human rights policies, all of which Bowman was aware of and had received training in.  The arbitrator found that Bowman’s conduct constituted very serious misconduct and caused actual damage to TFS’ reputation as well as its ability to carry out its work, including the implementation of its diversity initiative.

Hydro One TFC Debacle – 2015

Shawn Simoes, a Hydro One “sunshine list” employee attending a TFC game was a participant in a video that went viral.  In the video, a few (perhaps inebriated) TFC fans are heard yelling at a female City News reporter “f–k her in the p—y”.  When the reporter confronted the group it was Simoes who was shown defending the vulgar statement saying it was “f—ing hilarious”.

Once the video of the incident went viral around the world, Hydro One wasted no time.  They issued a statement saying “Hydro One is taking steps to terminate the employee for violating our code of conduct” and “Respect for all people in engrained in the code and our values.  We are committed to a work environment where discrimination or harassment of any type is met with zero tolerance” and eventually fired Simoes.

However, just today, about six months after the incident, Hydro One has confirmed that Simoes has been re-hired.  Hydro One stated that the reinstatement was a result of an “arbitration process”.

Though no decision has been reported yet, we expect the arbitration decision to come out in the coming months and we will keep you posted on the outcome.

The Legal Test – Just Cause or Just Because?

Though it may seem like it, the off-duty conduct of employees is not a new interest of employers, it has merely re-surfaced along with the popularization of mass media and the ability of employees to reach a large audience easily with the help of a cell phone and youtube.

For their part, judges rely on a test formulated in a 1967 case about off-duty conduct of employees: Re Millhaven Fibres Ltd. v. Atomic Workers International Union, Local 9-670, [1967] O.L.A.A. No. 4.  Here’s the test, as augmented by later decisions:

The termination of an employee on the basis of off-duty conduct will only be justified if the employer can show that at least one or more of the following are true:

  1. the conduct of the employee harmed the employer’s reputation or product (to the extent that there are no mitigating circumstances);
  2. the employee’s behaviour has made it so the employee is no longer able to perform his duties satisfactorily;
  3. the employee’s behaviour has led to the refusal, reluctance or inability of other employees to work with them;
  4. the employee has been guilty of a serious breach of the Criminal Code or of a Human Rights Code or Policy thus rendering his / her conduct injurious to the general reputation of the employer and its employees; and
  5. the employee’s conduct has made it difficult for the employer to carry out its functions of efficiently managing its work and efficiently directing its working forces.

Practical Tips to Avoid Off-Duty Issues

Here are some practical tips for employers who want to avoid issues with their employees’ off-duty conduct:

  • Have a strong written off-duty conduct policy, including a social media policy reminding employees that what they say/do may reflect poorly on their employer and may result in discipline up to and including termination.
  • Have a practical training session with employees about your off-duty and media policy – this will ensure that no employee can argue that they did not know or were not aware of the policy.
  • Where there is an incident of off-duty conduct, make sure to thoroughly investigate the incident, including allowing the employee in question to provide their side of the story – this should be done as a matter of course for any incident (whether on or off duty).
  • Consider how the off-duty conduct affects your business.
  • When considering whether the employee’s off-duty conduct has brought harm to your business’ reputation, think about what “a fair-minded and well-informed member of the public” would think of the off-duty conduct.
  • Consider whether a lesser form of discipline will suffice in place of termination (i.e. a suspension while investigation is ongoing, a written warning that any future off-duty conduct will result in termination, etc.).

If you need legal advice, contact DMC at any time.  We are your legal dental team.

DMC