Watch What You Say: Off-Duty Conduct Can Lead To Serious Workplace Repercussions

Article by Gabriel Granatstein

A few people have recently learned that publicly embarassing yourself outside of work can have a serious impact at work. A Hydro One employee was swiftly terminated following offensive statements made to a news reporter. A TC Transcontinental employee was suspended with pay pending an investigation following the public heckling of a female comedian. Does an employer have the right to investigate your off-duty conduct? Where is the line between your private and work life?

As non-unionized employers don’t need “cause” to terminate an employee, much of the case law has come from unionized workplaces. Arbitrators have held that in order for an employer to terminate an employee for off-duty conduct, there should be a connection between the conduct and the workplace. In order to establish this connection, decision makers have applied the “Millhaven Factors” which were outlined in the seminal case of Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670, [1967] O.L.A.A. No. 4. The five factors are:

  • The conduct of the employee harms the company’s reputation or product;
  • The employee’s behaviour renders the employee unable to perform his duties satisfactorily;
  • 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 and thus rendering his conduct injurious to the general reputation of the company and its employees;
  • Creates difficulty for the company to properly carry out “its function of efficiently managing its works and efficiently directing its working forces.”

These factors have been applied in recent arbitral decisions to determine whether an employer was justified in imposing discipline on an employee for off-duty conduct.

Although only proving one of these factors is required to for an employer to justify termination, arbitrators have emphasized that there can be a high threshold to meet. The interests of the employee in the autonomy of their private affairs must be balanced with the employers desire to protect their reputation and fellow workers. Arbitrators require a thorough investigation to be completed by the employer to substantiate claims under any of these factors.

In the Twitter age, an employee’s off-duty conduct is more likely to be broadcasted, and the continued rise of social media makes it easier for an employee to be connected to their workplace. Recent events serve as a cautionary tale for employees that clocking out from the office doesn’t necessarily disconnect them from certain employment obligations.

This article was written with the assistance of Nicole Buchanan, summer student.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world’s pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Why just sell a jet when you can also sell service contracts?

Excerpted article written by David Israelson | Globe and Mail

As our oil industry copes with slumping prices and the manufacturing sector still struggles, Canadians may be failing to notice one of the most promising global export stories – the huge growth potential in selling services.

“We really think it’s an area that’s poorly understood,” says Danielle Goldfarb, associate director of the Global Commerce Centre at the Conference Board of Canada.

“There’s very little discussion of the fact that Canada sells a lot of services into global markets. There’s often an image of burger-flipping jobs, but the services we’re selling are really associated with high wages – financial services, insurance, computer services and engineering and technology, where Canada is a world leader.”

The idea of selling services is straightforward. It can be either a sale of expertise or advice, such as legal counsel or business expertise, or a service combined with an initial sale of goods.

In the latter case, the growth comes from the potential long-term relationship that can develop.

For example, it is one thing if a company such as Bombardier Inc. sells its new C Series jets to foreign airlines, which the company seeks to do at the key Paris Air Show starting June 15. Equally, or perhaps even more, important are the long-term service and maintenance contracts that come with sales of sophisticated equipment such as jets.

The same type of added value applies to knowledge exports such as information technology and financial-service management, Ms. Goldfarb says.

“When you look at our exports over the past decade, three of the top five categories are in commercial services.” These are: finance and insurance, management service and computer and information services. “They’re growing much more rapidly than our exports of our products,” she says.

READ MORE HERE: Why just sell a jet when you can also sell service contracts?

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