Off-duty conduct, which involves an employee’s actions outside of working hours, can result in discipline up to and including dismissal for cause. This is what occurred on June 16, 2023, when a secondary school in British Columbia (the “School”) dismissed an educational assistant (the “Employee”) for cause due to her off-duty conduct. Outside of her working hours, the Employee was using OnlyFans, an internet content subscription service that is primarily known for featuring explicit adult content.

The concept of social media posts resulting in discipline is by no means new, but when are employers allowed to discipline employees for their off-duty conduct?

Generally, Canadian decisionmakers have held that employers should exercise caution when it comes to employee’s personal lives, to avoid undue intrusion into their private affairs. However, decisionmakers have also outlined certain considerations, including whether an employee’s off-duty conduct harms the employer’s reputation or operational efficacy, which may permit the employer to discipline an employee for their off-duty conduct.

Background on Off-Duty Conduct: Connection to and Impact on Employer Are Essential Considerations

Previous case law has demonstrated that whether an employee can be disciplined for their off-duty conduct will heavily depend on whether the conduct can be connected to the employer and how the employer has been impacted by the conduct.

For example, in Toronto (City) v Toronto Professional Fire Fighters’ Association, 2014 [TPFFA], a firefighter employee posted misogynistic, sexist, and racist messages on Twitter. The employee identified his employer in his profile and public postings. Subsequently, his public Twitter posts were published in a newspaper as evidence of the employer’s culture of being unwelcoming towards women. The employee’s Twitter profile page also included a photo of him in his employee uniform and identified him as working for the employer. The employee was subsequently dismissed for cause due to his inappropriate off-duty use of his Twitter account. His for-cause dismissal was upheld by the arbitrator.

Conversely, the suspension in Re Ontario (Ministry of Community Safety and Correctional Services and OPSEU (Groves) [Groves] was not upheld. The employee, an Ontario Corrections Officer, engaged in similar off-duty conduct as the employee in TPFFA, as he made sexist public posts on Twitter. Initially, the employee posted sexually suggestive commentary about a car, referring to it as a woman. For this, he received a non-disciplinary letter to advise him that his posts were inappropriate and disrespectful, and that even though his posts were made outside of the workplace, his off-duty conduct could still negatively impact the employer and would not be condoned. Some time later, the employee depicted a woman in a manner that was compromising and offensive on Twitter. He was suspended for ten days as a result.

In Groves, however, the adjudicator did not uphold the suspension and instead, held that the employee should be compensated for losses stemming from the suspension. Importantly, the adjudicator found that the employee’s public posts did not identify his role with the employer, nor did it identify the employer. As such, the adjudicator found that the employee did not cause any reputational harm to the employer, and therefore no discipline was warranted.

Dismissal for Continued Use of OnlyFans as an Educational Assistant

In the “OnlyFans” case, the School dismissed the Employee, who was unionized, for cause on the basis of “egregious” off-duty conduct. The Employee continued to post adult content on her OnlyFans account while she was working at the School, despite a warning from the School. The Employee explained her OnlyFans posts helped to supplement her income.

According to the Employee, she kept her professional life and her personal life separate, and her off-duty conduct is legal work.

How then, was the Employee’s conduct connected to the School and what impact did it have?

The Employee speculated that a video of her wearing a schoolgirl outfit that she posted on TikTok, a social media platform, may have been relevant to the School’s decision to dismiss her.

According to the School, the “egregious” off-duty conduct included but was not limited to:

• the sexualization of the school environment;
• disparaging the School in media interviews;
• linking her position with the School and her OnlyFans work through the interviews; and
• capitalizing on the link between being an employee of the School and an adult performer on her OnlyFans account.

The Employee has since filed a grievance against the School.

In Teamsters Canada Rail Conference v Canadian Pacific Railway Company, a grievance in 2019, the arbitrator found that the employee’s semi-nude photos were not “inappropriate internet content” as suggested by employer’s dismissal letter. While the employee was wearing a company vest in one of the photos, the arbitrator found the employer’s logo was barely noticeable and, in any event, the photos did not reflect conduct unbecoming or a failure to act in a manner that enhances the employer’s reputation. However, the arbitrator did find the employee made public posts that expressed derogatory statements about the employer, and found that this conduct warranted a short suspension.

The outcome of the “OnlyFans” grievance remains to be seen, including whether there is a sufficient connection to demonstrate that the Employee’s conduct was connected and had an adverse impact on the School. However, this case demonstrates the nuances at play when considering whether an employee’s off-duty conduct, including conduct that is legal work, justifies a dismissal for cause in relation to that conduct.

Takeaways for Employers

As illustrated in the above cases, where an employee clearly references their employer in the context of inappropriate or egregious social media posts, it is more likely that a sufficient connection exists between the employee’s off-duty conduct and the harm caused to the employer because of that conduct. Conversely, where an employee engages in egregious or inappropriate off-duty conduct but does not make any reference to the employer, a decisionmaker will likely find that there was no impact to the employer’s reputation and that a just-cause dismissal is not warranted.

While employers can discipline an employee for off-duty conduct in some circumstances, employers should ensure that the impugned conduct is sufficiently linked to the organization and, where the employer’s reputation or operational interests are at stake, that actual harm was suffered by the organization as a result of the employee’s off-duty conduct.

If an employer establishes that discipline is warranted with respect to the employee’s off-duty conduct, the employer should ensure such discipline is proportionate to the misconduct. With respect to dismissals, unionized employers must establish just cause, while non-unionized employers have the option to dismiss the employee with or without cause.

Employers should also consider whether an employee’s off-duty conduct is connected to a human rights ground, as this may require a different analysis to ensure the employer does not violate its human rights obligations.

Employers should establish clear policies that address non-permissible off-duty conduct and discipline that may result for violating these policies. Relevant policies may include a code of conduct policy, a social media policy, and a progressive discipline policy.

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

This information is not intended as legal advice.