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.

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