On April 8, 2011, the National Post reported that the secretary had 9 years of service with the school board and that she is considering legal action following her dismissal. Judging from letters-to-the-editor and comments on various news articles, Canadians appear to be divided on the issue of whether off-duty conduct can justify someone’s dismissal. Some take the view that if an employee’s off-duty conduct is legal, then it is none of the employer’s business and should not be grounds for dismissal. Others maintain that immoral off-duty conduct can justify terminating a person’s employment, especially when one works with vulnerable and impressionable young people.
From a legal standpoint, the relevance of an employee’s off-duty conduct depends on a number of different factors, such as whether the employee is unionized or not unionized, whether the off-duty conduct relates in some way to the person’s job duties, whether the off-duty conduct is illegal, whether the person has been convicted of an offence or merely accused of an offence, and so on and so forth.
Generally speaking, a non-unionized employee can be terminated for cause only if his or her off-duty conduct causes prejudice to the employer’s business or is not consistent with the employee’s work duties.
For example, where a person is dishonest with his or her employer about a medical condition, and the employer later discovers the truth of the person’s medical condition, there is no cause to terminate the employee. This is because there is no nexus between the employment duties and the dishonesty. In other words, where the person was dishonest about something that is personal and not related to their work, they generally cannot be dismissed for cause: McKinley v. BC Tel (2001), 200 D.L.R. (4th) 385 (S.C.C.).
However, some off-duty conduct is so outrageous that even if it has no connection to the person’s employment duties, and even if the employee is very highly regarded, discipline-free, and a top-performer, an employer may still be justified in dismissing that employee for cause. An example of this was seen in the Kelly v. Linamar Corp. decision where the plaintiff was a great performer who was subsequently convicted of possessing child pornography. The Court ruled that dismissal for after-acquired cause was justified in that case.
One issue the courts have emphasized in considering off-duty conduct is the nature of the employment. Where someone works in a setting where they have a great degree of responsibility and where people rely on them for advice and integrity (lawyers, investment advisors, senior management, etc.), off-duty dishonesty or disreputable conduct that may embarrass the employer can be a basis for just cause dismissal. In Whitehouse v. RBC Dominion Securities Inc. (2006), 50 C.C.E.L. (3d) 125, an employee’s dismissal for cause was upheld when it was revealed that he had brought a prostitute to his offices after work hours, had consumed alcohol in his office, and then lied about it to his superiors. In that case, the Court relied on factors such as the Plaintiff being responsible for $125,000,000 of capital, the fact that he was a Vice-President, and that he was one of the faces of the largest brokerage in Canada. In these circumstances, off-duty conduct was seen to be sufficient to justify dismissal for cause. .