Are Employees Ever Really “Off the Clock”?
Off-duty conduct of employees has been a hot topic in the news recently. In the age of round-the-clock social media, inappropriate employee conduct can have far-reaching effects on an employer’s brand and reputation. Employers often face significant public pressure to terminate an employee based on off-duty conduct, but concerns arise when terminations are unwarranted and may result in grievances (in unionized environments) or wrongful termination lawsuits (in non-unionized environments).
The recent case of Union of Public Employees, Local 4400 v. Toronto District School Board, 2015 CarswellOnt 6561 provides an example of off-duty conduct which resulted in dismissal.
In September 2012, the grievor attended a Toronto District School Board (TBSB) school – off duty – to pick up her 13 year-old daughter. When she arrived, the grievor thought that a 14 year-old male student had been bullying her daughter. An altercation ensued, which was recorded by student bystanders and was subsequently uploaded to You Tube. The video shows the grievor insisting the male student apologize to her daughter, yelling inappropriate comments and obscenities at him, and telling him she works for the TDSB and can find out anything she wants to find out about him.
The employer dismissed the grievor on the basis that she had breached its employment policies, one of which specifically provided that it is unacceptable for an employee to insult, degrade or direct demeaning comments to a child. The union grieved the dismissal, arguing that the altercation occurred when the grievor was off duty and that the employer has no jurisdiction or authority over what employees do in their private lives.
The onus was on the employer to demonstrate that discipline for off-duty conduct was warranted. On the facts of the case, the arbitrator accepted the employer’s position that the grievor’s conduct clearly harmed the TDSB’s reputation and as such discipline was appropriate (Millhaven Fibres Ltd. Millhaven Works, and Oil, Chemical and Atomic Workers Int’l Union, Local9-670 (1967)). As to whether dismissal was the appropriate form of discipline, the arbitrator considered the fact that the grievor had identified herself as a TDSB employee and directed vulgar and profane language at a TDSB student on TDSB property. Clearly, the grievor’s conduct was substantially connected to her employment and impacted the TDSB’s reputation for those who saw or heard about the incident.
Lessons for Employers:
The test for determining whether termination is justified varies slightly depending on whether or not the workplace is unionized; however, the overall factors to be considered are similar. Generally, employers must show a link between the off-duty conduct and the workplace. For example, that the off-duty conduct has significantly affected employer’s ability to manage the operation or workforce, or that it has harmed the general reputation of the business.
In an effort to prevent such situations, expectations for off-duty conduct should be clearly set out in employment policies, along with consequences for conduct that is potentially damaging to the employer’s brand and reputation. Employers should incorporate such policies into employment agreements, or have the employee sign off on the policies or codes of conduct. Policies should also address and describe the limitations for use of social media for both personal and professional accounts.