Williams HR Law LLP

OFF-DUTY MISCONDUCT LEADS TO ON-DUTY DISCIPLINE: HOW OFF-DUTY EMPLOYEE MISCONDUCT CAN LEAD TO DISMISSAL FOR JUST CAUSE

August 2, 2023

While employees are free from commitments to their employer when they are not at work, committing serious misconduct off-duty can warrant discipline by their employer. In the recent case of the Corporation of the City of Calgary v Amalgamated Transit Union, Local 583 [AMTU], an employee’s off-duty misconduct was found to justify dismissal for just cause.

Background

In AMTU, two employees of the employer employed as Transit Operators test drove a car together while off duty. During the drive, one employee made sexual advances towards his co-worker. The co-worker rejected the advances. Upon leaving the car, the co-worker hugged the employee briefly, at which point the employee touched the coworker’s breast sexually.

The co-worker did not intend to report this incident to their employer as the incident had occurred outside work. Nonetheless, the employer became aware of the incident and commenced an internal investigation. The investigation concluded that the employee had breached employer policies dealing with off-duty conduct and the employer subsequently dismissed him for cause.

The Decision

After the union grieved the dismissal, the arbitrator found that the employee intentionally touched his co-worker’s breast sexually without her consent. In assessing the evidence, the arbitrator found the co-worker’s version of events regarding the test drive to be more credible than the employee’s evidence. The employee had testified that there was no sexual intent in his advances, stating that he may have touched his co-worker’s breast accidentally, but did not think he did so. The arbitrator noted the inconsistencies in the employee’s testimony from the investigation to the cross-examination and found that the employee was prepared to lie to protect his job. Accepting the evidence of the co-worker, the arbitrator concluded that the employee had sexually assaulted his co-worker.

Given the off-duty nature of the conduct, the arbitrator then determined whether the off-duty misconduct warranted the employer’s disciplinary response of dismissal for cause. The arbitrator reiterated the test from Re Millhaven Fibres Ltd., Millhaven Works, and Oil, Chemical and Atomic Workers International Union, Local 9-670 [Millhaven Fibres], which has long been employed by Canadian adjudicators to determine whether an employee’s off-duty misconduct warrants discipline.

The Millhaven Fibres test requires an employer to show that:

  1. The conduct of the employee harms the employer’s reputation or product.
  2. The employee’s behaviour renders other employees unable to perform their duties satisfactorily.
  3. The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with them.
  4. The employee has been guilty of a serious breach of the Criminal Code resulting in their conduct injuring the general reputation of the employer and its employees.
  5. Places difficulty in the way of the employer properly carrying out its function of efficiently managing and directing its workforce.

It is not necessary for the employer to prove all the criteria exist, as depending on the degree of the impact of the offence, any one consequence can be enough to warrant discharge.

The arbitrator found the dismissal was not an excessive response to the misconduct. Among other factors, the arbitrator noted the serious nature of the sexual harassment that would harm the reputation of the employer as a municipal entity, compromising the trust of working with the general public and vulnerable populations, and the employer’s legal responsibility under occupational health and safety legislation to protect employees from sexual harassment.

Takeaways

AMTU sheds light for employers on how off-duty misconduct by employees can lead to discipline, up to, and including, dismissal. However, employers should note that determining whether off-duty misconduct is serious enough to justify dismissal for cause is a complex process that requires the assessment of numerous legal and business factors.

AMTU also serves to highlight the importance of conducting a proper workplace investigation where there are allegations of employee misconduct. A workplace investigation can be important in revealing the details and severity of the misconduct, including where the misconduct occurs off-duty. The findings from the investigation can then be relied upon to implement an appropriate disciplinary response. Employers should ensure that investigations are carried out impartially, allowing the employee alleged of the misconduct a fair opportunity to respond to the allegations.

Ontario employers should be aware that, as described in the Ontario Court of Appeal’s 2022 decision in Render v ThyssenKrupp Elevator (Canada) Limited, conduct that justifies just cause for dismissal does not automatically deprive an employee of their statutory entitlements under the Employment Standards Act, 2000 [ESA]. Unless the conduct falls within the definition of willful misconduct or willful neglect of duty, the employee will retain their minimum entitlements under the ESA, despite being dismissed for cause. In order to accurately assess an employer’s options after serious off-duty misconduct, employers should contact an employment lawyer prior to implementing any disciplinary measures.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.

Expertise