The viral employee: The effect of off-duty and online conduct

7 minute read
01 June 2015

The recent Toronto soccer stadium incident involving an Ontario Power Generation employee highlights a growing tension between employees' off duty misconduct and employers' authority to penalize them for it. Unfortunately, this tension won't be resolved by the legal system anytime soon, so, in the meantime, employers need to be more proactive about educating employees regarding their legal obligations to their employers outside of the workplace and outside of working hours.

Judges, arbitrators and tribunals have for a long time recognized that an employee may be dismissed for misconduct that occurred away from the workplace and outside of regular working hours. An employee could be dismissed for just cause if the employee's off duty misconduct:

  1. Detrimentally affected the employer's reputation;
  2. Rendered the employee unable to properly discharge his or her employment obligations;
  3. Caused other employees to (reasonably) refuse to work with the employee;
  4. Impaired the employer's ability to efficiently operate its business; and/or
  5. Amounted to a serious criminal offence.

Nevertheless, it has not always been clear how this 'test' was to be applied. How many of these prongs did an employer need to satisfy? Did an employer need to show actual harm, or would the potential for harm suffice? How would an employer prove that an employee's co-workers were refusing to work with the offender? Did they need to quit or just threaten to quit? What about an employee petition? How could a large employer ever show that one employee's loathsome behaviour compromised its operations? Was that part of the test scalable? How serious a criminal offence? Aren't all criminal offences serious?

Needless to say, this has led to some seemingly inconsistent outcomes, even where the connection between the offending behaviour and the workplace was more immediate. In one case an employee posting on social media that she wanted to kick a supervisor in the genitals wearing steel-toed boots and to spit in a supervisor's face was not just cause. In another case, the dismissal of an employee was upheld where she posted threatening comments and ethnic slurs on social media directed at her supervisors when she became frustrated with the lack of progress of a safety investigation.

Until the digital era, off duty misconduct cases tended to involve employees who had been charged or convicted with crimes that were inconsistent with their roles, like the accountant convicted of fraud; or, employees whose choice of romantic partners was ill advised, such as the bank teller and the bank robber, the psychiatric nurse with her patient, or the sales manager and his co-worker's spouse.

Today, every bystander is carrying an HD quality video camera that captures sound (unlike security cameras that cannot for fear of 'wiretapping') and the entire planet can engage in the equivalent of a police line up via social media to identify offenders and their employers.

The result is that employers will be increasingly confronted with situations where they must address reprehensible off-duty employee behaviour that is scrutinized on a potentially global stage. The connection between the offending behaviour and the workplace may also be less immediate, such as where the offenders do not identify themselves with their employers, and the offending behaviour reveals repugnant characteristics but has not resulted in criminal charges (let alone a conviction).

Employers, however, should not expect the law on the subject of off duty misconduct to become more definitive or predictable any time soon, at least not until it wrestles with these more novel issues.

Unfortunately, many of the cases that would otherwise help create a consistent body of case law are likely to be settled before they are adjudicated precisely because the reputational harm to both the ultimate winner and loser is potentially catastrophic.

Moreover, the Supreme Court of Canada has laid down the principle that whether or not an employer will have just cause to dismiss (or impose discipline short of dismissal) requires a 'contextual' analysis. In other words, no single type of wrongdoing will always be found to be 'just cause'. Even more simply, there are no 'slam dunk' cases for employers anymore (if there ever were).

As employers increasingly have to weigh reputational risk against an adverse legal outcome, the question that repugnant off duty behaviour will force employers (and their lawyers) to ask themselves will be 'is this case worth losing?'

The law will have to catch up to more modern notions of workplace respect, merit-based decision-making, and inclusiveness; employers' legal duties to ensure that workplaces remain un-poisoned and free of harassment; and the spectre of online shaming and crises going 'viral'.

Until it does, however, employers should be proactive and adopt intelligent and realistic behavioural policies, including those related to off duty conduct (including social media), that help establish 'bright lines' to guide their employees' judgment and that clarify expectations in and out of the workplace. If all else fails, those types of policies, if well-conceived and adopted properly (i.e. through employee education and engagement), can justify discipline that may deter repetition.

Many employers, however, have been reticent to take such steps. That inertia is excusable since employers do not relish intruding upon their employees' personal lives. However, the better approach is to engage employees to reconcile their privacy and autonomy away from the workplace with the sometimes harsh realities of modern working life in the digital and social media era.

There is tremendous value in educating employees about the round-the-clock duties they owe to their employer (e.g. loyalty and confidentiality) and the duties they owe to their co-workers (e.g. refraining from harassment, privacy, etc.). Reminding employees that lost customers, offended stakeholders, increased litigation costs, etc., are unlikely to translate into better salaries, bonuses, or more paid time off should help get them to 'buy in'.

Unless and until employers help employees better understand the scope of their legal duties outside of the workplace and working day, and why, as employees, they need to buy into them, those duties will provide employers with only cold comfort after something has gone 'viral'.

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