Background

With the Blue Jays in the playoff run, baseball is top of mind for many Canadians. It’s also a timely reminder for employers that off-duty conduct—whether at a game, a work event, or online—can quickly become public.

The 2016 “beer toss” incident at a Blue Jays playoff game remains a lasting reminder. Within minutes, footage of a fan throwing a beer can onto the field went viral. The story quickly moved beyond baseball, sparking broader discussions about reputational risk, accountability, and how personal behaviour can reflect on professional life.

Nearly a decade later, the same concerns remain relevant. Today’s equivalent of the “beer toss” might be a viral video, an inflammatory online post, or an alcohol-related incident at a public event. With cameras everywhere and employees easily identifiable online, employers can quickly find themselves drawn into the spotlight.

Legal Landscape: The Millhaven Fibres Test

Off-duty conduct may justify discipline (or, in some cases, dismissal) when it has a detrimental impact on the employer’s business. In Re Millhaven Fibres Ltd. and OCAW, Local 9-670, the arbitrator identified five circumstances in which an employer may be justified in disciplining an employee for off-duty conduct:

1. The conduct of the employee harms the employer’s reputation or product.
2. The conduct renders the employee unable to perform their duties satisfactorily.
3. The conduct leads other employees to refuse or be reluctant to work with them.
4. The employee has committed a serious violation of the Criminal Code,  resulting in injury to the general reputation of the employer and its employees.
5. The conduct interferes with the efficient management of the employer’s activities and its workforce.

It is not necessary for the employer to prove all the criteria exist. Depending on the seriousness and impact of the conduct, any one factor may be enough to justify dismissal. That said, not every misstep or embarrassing incident will meet the threshold for just cause. Context, intent, and the actual impact on the employer’s operations or reputation must all be carefully considered.

Employers should take a measured approach before responding. Conducting a fair investigation, consulting legal counsel where appropriate, and avoiding premature public can all help minimize legal and reputational risk.

Applying the Principles: What Employers Should Watch For

During periods of heightened social activity—whether around major sporting events, work functions, or holidays—employers should remain mindful of potential risks that may arise at or around public events.

Preventative action is the most effective form of risk management. Employers should communicate behavioural expectations clearly before major social or public events and ensure that workplace policies address off-duty conduct. If an incident occurs, respond proportionally, gather the necessary facts before taking action, and coordinate communications carefully with legal and public relations teams.

Key Takeaways

Employers can reduce risk and protect their reputation by taking a proactive and balanced approach to off-duty conduct:

• Set expectations early: Remind employees that professional standards extend beyond work hours, and outline expectations related to off-duty conduct that may impact the organization’s reputation in a clear policy.
• Assess conduct in context: Evaluate each situation based on its specific circumstances, including the nature of the conduct, the employee’s intent, and the resulting impact on the organization.
• Seek legal advice before asserting just cause: Conduct that may justify dismissal for just cause at common law may not meet the statutory threshold for misconduct that would disentitle an employee from their minimum termination entitlements under the Employment Standards Act, 2000. Consult legal counsel to assess the severity of the conduct and determine the most appropriate, legally sound response.

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

This information is not intended as legal advice.