Casual Legal: Termination for off-duty conduct

By Mitchell Hayward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

The boundaries that separate our work and social lives have become increasingly blurred, thanks to social media's widespread popularity and the introduction of new remote and hybrid work policies.

Employers today are often left questioning where the line should be drawn with respect to when they can discipline, or even terminate, an employee for misconduct that occurs outside of work hours.

Generally speaking, an employee’s off-duty conduct will not be a concern to the employer unless there is a real and material connection (a nexus) to the workplace. Courts and tribunals often consider several factors when examining whether off-duty misconduct warrants disciplining or dismissing an employee. For an employer to justify discipline, an employee’s conduct must have:

• Harmed the employer’s reputation or product
• Rendered the employee unable to satisfactorily perform duties
• Led to the refusal, reluctance or inability of others to work with the employee
• Made it difficult for employer to carry out function of managing its works and directing its workforce.

After establishing if one or more of these things occurred, the employer must then demonstrate that the conduct was serious enough to warrant disciplining or dismissing the employee.

Courts have found the following “off-duty” incidents warrant just-cause termination of a person’s employment:

• Sexual assault
• Possession of child pornography
• Uttering death threats to co-workers outside of work hours
• Posting disparaging comments about clients online
• Posting disparaging comments about co-workers online
• Posting racist comments online
• Assaulting a person who crossed a picket line during a strike.

Ultimately, like most employment and labour law cases, the outcome will depend on the facts at hand.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.