Shining a Light on Off-Duty Misconduct: When is it cause for discharge?

The circumstances surrounding CBC’s recent firing of Jian Ghomeshi raise a host of legal issues, including an employer’s ability to discharge employees for off-duty behaviour. When can an employee be fired for misconduct that occurs outside the workplace? Does an employer have a right to suspend an employee who faces criminal charges? Does lying about a past criminal conviction itself justify discharge? In this session, seasoned counsel will explain the legal principles applicable to discipline for off-duty misconduct. Topics to be addressed include:

• Understanding the ground rules: When can employees be disciplined or discharged for off-duty misconduct? Does this depend on whether the workplace is unionized or non-unionized? What type of evidence is required to establish that off-duty conduct has harmed an employer’s business interests? Are adjudicators more likely to uphold dismissal for employees working in trust-sensitive positions, such as teachers, police officers, and health care workers? Are certain forms of misconduct, such as theft and fraud, regarded as particularly egregious? What mitigating factors are given significant weight by arbitrators? Length of service? Prior disciplinary record? Expression of genuine remorse?
• Responding to criminal investigations and charges: Should employers always conduct an independent workplace investigation where a criminal investigation is underway, or criminal charges have been laid? Can an employee be disciplined for remaining silent during an employer’s investigation into criminal charges arising from off-duty behaviour? Does an employer have a right to suspend an employee who faces criminal charges? If an employee has been criminally charged, how should an employer assess the risks attendant on continued employment? Do restrictive bail conditions relieve an employer of continuing employment pending disposition of criminal charges, or must the employer consider other possible positions, or flexible work arrangements? If suspension pending trial is found to be justified, but the employee is ultimately acquitted of criminal charges, is he or she entitled to back pay?
• Considering criminal convictions: In what circumstances, if any, can an employee be discharged for a criminal conviction related to off-duty conduct? When will arbitrators find that a criminal conviction has a negative impact on an employer’s business? Does it matter if the conviction preceded hiring, but was only later discovered by the employer? Does lying about a past criminal conviction itself justify discharge? If an employee is convicted of a criminal offence and requires time off for incarceration, must the employer accommodate this need or can the employee be fired?
• Assessing harassment and violence: What unique considerations apply where an employee’s off-duty misconduct involves harassment or violence? How can employers and unions ensure the safety of the work environment if a harassing or violent employee remains in the workplace?
• Reacting to public criticism: Can an employee be fired for publicly criticizing his or her manager or the employer’s business operations? What about comments that would be offensive to an employer’s clientele? Do the comments need to be discriminatory to justify termination? When will Facebook posts or Tweets be considered “public” in this context?