Should Employers be Allowed to Fire Employees for Their Off-Duty Conduct?

Should employers be allowed to fire employees for their off-duty conduct? Although this blog has repeatedly considered the issue of whether employers can fire employees for their off-duty conduct (they can; see e.g. Comments on Facebook "Just Cause" for Dismissal), the question that this blog has not yet really considered is whether employers should be able to do so.

In posing this question I do not wish to be taken as suggesting that any particular set of actions should go without punishment. Moreover, I do not intend to suggest that perhaps an employee should never lose his or her job for off-duty conduct. Rather the questions are really these:

• Is termination from employment ever an appropriate punishment for one’s off-duty conduct?
• If termination can be an appropriate punishment, after what sort of process should such a punishment be meted out?
• How serious must the off-duty conduct be in order to warrant termination from employment?

At the time this post is being written there is much in the news about an employee of Hydro One who had his employment summarily terminated after being involved in hurling misogynistic vulgarities at an one-air television personality.

When that story initially broke, most of the attention surrounded whether Hydro One could actually fire someone for such a thing. The unreserved answer from ‘those in the know,’ was a resounding “yes”, unless that employee was employed pursuant to a collective agreement , i.e. if he was unionized.

Why Being Unionized Matters

For those unfamiliar with the nuances of Ontario employment law, there is a reason that employment law commenters pointed to the existence of a union as a reason why the employer might not be able to fire the employee, which is as follows.

As is explained more fully on our page What is Wrongful Dismissal?, as a general statement of law, employers in Ontario do not require a valid reason fire an employee. Furthermore, the failure to have a ‘good enough’ reason to fire someone is not wrongful dismissal. Provided that the employee is provided with sufficient notice of termination or payment in lieu of such notice, the employee has not been “wrongfully” dismissed. Again, more on what is wrongful about wrongful dismissal is explained here: What is Wrongful Dismissal?

The reason that the unionized environment is different is because typically in the unionized environment employers must have “just cause” to terminate the employment agreement. If the employer cannot demonstrate just cause, then the employee typically enjoys the right to be reinstated and to be compensated for the wages that he otherwise would have earned during any period of unemployment.

Returning to the Hydro One case, if the employee is unionized, then Hydro One must show that the employee’s actions gave the employer “just cause” to end the employment relationship. If Hydro One is unable to show just cause, then the employee will be entitled to reinstatement. He will not be fired.

However, if the employee is not unionized, then it is somewhat immaterial whether Hydro One had just cause; the employee has no legal right to reinstatement. He’s done. He’s out. The law is powerless to assist him get his job back, even if a judge finds that Hyrdo One was completely in the wrong to fire him. (For the record, based on current jurisprudence, I doubt that such a finding would be made. But I digress.)

Is Termination Ever Warranted?

The discussion above brings us to the first question: is termination from employment ever an appropriate response to an employee’s off-duty conduct?

Losing one’s job is an interesting form of punishment for one’s actions carried out on his own time. Typically, punishment for actions that society deems unacceptable is imposed by the state; one is fined, or imprisoned for example. That punishment is also only imposed after the accused has had the opportunity to defend himself in a court of law pursuant to a host of procedural protections the specifics of which I will leave to my criminal law colleagues.

But let us return to the point: losing one’s job is a form of punishment for one’s actions imposed not by the state, but by a private actor, the employer. Should private parties be allowed to impose punishment if the state does not? Is this how we, as a society, intend justice to be administered? By private parties?

Let us not be naïve, being fired from one’s job is a form of punishment. Depending upon the period of unemployment, the financial penalty imposed by the employer may be far greater than any fine that could be imposed by the state.

So, is termination from employment ever going to appropriate? Of course it is. There are certain actions that clearly demonstrate the employee’s inability to continue to be employable. Actions that demonstrate the employee’s propensity to jeopardize the health and safety of co-workers must be addressed. Also, actions that inflict economic harm on the employer’s brand, i.e. ‘guilt by association’ can be, in my opinion, sufficient grounds for the employer to disassociate itself from that employee. Not everyone agrees on this point, however.

When Should the Punishment be Imposed?

There are really two questions asked by the question of “when” should punishment be imposed: (1) after what amount of process; and (2) in what set of circumstance?

I have already answered the second question, and there are a number of decisions authored by more learned writers than me that one should read and consider before advancing any position. Consider, for example, the approach taken by Ontario Labour Relations Board Vice-Chair Harry Freedman in International Union of Elevator Constructors, Local 50 v ThyssenKrupp Elevator (Canada) Ltd, 2011 CanLII 46582 (Ont. L.R.B.), canvassed by this blog in the post Why Your Organization Needs a Social Media Policy.

As to the first question, there is the issue of due process. The criminal law imposes not only restrictions on one’s actions, but also limitations on the way that the state may impose sanctions for those actions. Not everyone who commits a criminal act is legally guilty. Nor is everyone who commits a criminal act punished by the state. There are, as best that I understand given my limited knowledge of the Canadian criminal justice system, certain legal safeguards, enshrined in the constitution, that protect an accused from being punished where one is not legally guilty. While some view such protections as “technicalities” and “loop holes”, they are legal protections that our society has sought fit to have. It is not my intention to debate the merits of such protections. The problem is the absence of such protections in cases of termination from employment. As stated above, absent some form of contractual protection, employees working in Ontario have no form of legal safeguard against termination. Employers may terminate employees for any reason at all, and one’s only remedy, if the employer unjustifiably takes the position of having “just cause” for termination, is an amount of money to bridge that employee from one job to another, i.e. payment in lieu of notice.

One idea that I have had is the option, perhaps even obligation, for employers to seek a declaration of just cause before termination. In that case, the employer would be obligated to prove its case to an independent third party before imposing punishment, in the same way that the state is generally prohibited from imposing any sort of punishment before proving its case to the court. A leave of absence (either with or without pay) would be the equivalent of pre-trial detention and bail; it could be imposed in appropriate circumstances, provided that one had a hearing within a very short period of time that operated in a manner similar to bail hearings. If the employer could show that it had a strong prima facie case, then the employee could be excluded from the workplace until such time as the full case could be heard. Whether the employee should be placed on a leave of absence either with or without pay would be left to the discretion of the learned third party adjudicator.

I suggest obligating employers to apply for a declaration of just cause before termination for this reason: recall that once termination has been imposed there is no legal opportunity for the employee to be reinstated. (Of course, the alternative is to allow for such a remedy.) If the criminal law worked in the same way as employment law, the state could execute someone before determining his guilt. Any finding of innocence would obviously come too late.

True, forcing employers to prove their case before they are legally able to fire someone imposes a cost on the employer. However, the same is really only a slight shifting of the burden that already exists. In cases where the employee objects to his termination for cause, the onus remains on the employer to prove the same. The only difference from the current system is, much like the example of execution mentioned above, it is somewhat academic whether the employer is correct; the employee is still out of his job.

I pause here to add only this: I do not wish to be taken as suggesting that employers should never be able to terminate the employment relationship without first having shown just cause. I am not advocating for a return to the “unjust dismissal” system that plagued the employment law world governed by the provisions of the Canada Labour Code (more on that issue can be found in the post Terminations without Cause are not Automatically Unjust: Federal Court of Appeal), rather what I am suggesting is that if the employer is going to allege just cause for termination outside the collective bargaining arena it may be prudent to either: (a) require employers to seek the court’s declaration of just cause before termination, or (b) permit the remedy of reinstatement for cases where termination for cause has been inappropriately imposed. In the alternative, given that I do not advocate for the abolition of terminations without cause, a final suggestion would be to maintain the current system of terminations without cause and notice of termination, but incorporate a system whereby if an employer alleges just cause for dismissal, which is ultimately found not to have existed at the time of termination, the employer must still provide the employee with reasonable notice, but only after also providing the employee with lost wages for the period of time that the case took to wind its way through the legal system.

Caveat and Request for Comments

Again, the opinions expressed above are not intended to be taken as condoning any particular set of actions. The same are offered as one man’s thoughts on the complex intersection of the importance of employment and sanctity of due process. The opinions expressed above reflect those of the author and may not necessarily reflect the views of Kelly Santini LLP.

Discussing this issue is important. Jobs are important. Due process is important. So, what do you think: should employers be permitted to summarily fire employees for off-duty conduct? Does the punishment always fit the crime? What sort of due process, if any, should be followed before employers can terminate their employees? What should the penalty to employers be, if any, when they get the issue of just cause wrong? Thoughts, opinions, and commentaries welcomed below.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.