Off-duty criminal conduct may have important ramifications on an employee's ability to maintain his or her livelihood. In fact, to the extent off-duty misconduct jeopardizes an employer's legitimate business interest, arbitrators, courts and tribunals have upheld suspensions and the discharge of employees involved in egregious conduct outside the workplace.
Nonetheless, even in the face of criminal allegations or formal criminal charges, employers should refrain from making hasty decisions upon learning that one of their employees is implicated in the alleged criminal conduct. Rather, decisions should be based on an internal investigation and on the circumstances of each case, including the seriousness of the offence and its nexus or connection with the workplace.
Should the employee be temporarily suspended from the workplace?
Upon learning that an employee was allegedly involved in off-duty criminal conduct, an employer will need to consider whether immediate steps or interim measures are required to ensure a safe and efficient workplace. For example, an employer may find that the employee must be suspended from the workplace pending a more thorough investigation into the allegations or the resolution of the criminal trial.
To determine if a suspension is appropriate in the circumstances, a balancing exercise must occur to assess the competing interests of both the employer and the employee. The following five principles have been established in the unionized sector:
- Is there a reasonably serious and immediate risk to the employer's legitimate concerns?
- Is there a harmful, detrimental or adverse impact on the employer's reputation, product, employees or customers?
- Has an employer investigation taken place to assess the risk of continued employment?
- Can that risk be mitigated, for example by closer supervision or a transfer to another position?
- Has the employer continued to consider the possibility of reinstatement?
Of course, in a non-unionized environment, a suspension from the workplace pending further investigation or the resolution of the criminal trial may lead to an argument of constructive dismissal. In such cases, relevant considerations will include whether the employer has demonstrated that the suspension was justified in the circumstances, derived from legitimate business reasons, made in good faith and had minimal impact in terms of its duration.
Is discipline warranted?
Once the employer has fully investigated and assessed the allegations and the evidence, its consideration will turn to whether the employee should be disciplined for his or her off-duty conduct.
In this context, a well-known labour arbitration principle is that an employer cannot discipline an employee for the simple fact that egregious conduct took place outside the workplace. Once again, a nexus or connection between the off-duty conduct and the efficient operation of the employer's business must be established. The importance of a meaningful investigation of the off-duty conduct is crucial. Unsubstantiated facts and speculations cannot on their own support the discipline of an employee.
In the unionized context, the following five factors are used to determine whether a nexus exists and whether discipline for off-duty conduct is warranted:
- The conduct of the grievor harms the company's reputation or product;
- The grievor's behaviour renders the employee unable to perform his or her duties satisfactorily;
- The grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him or her;
- The grievor has been guilty of a serious breach of the Criminal Code and thus rendering his or her conduct injurious to the general reputation of the company and its employees; or
- The conduct places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
Burden of proof
The burden lies on the employer, though not all factors must be proven. Depending on the impact of the offence, any one of the factors may warrant discipline or discharge. As such, and as is often the case, the test will largely depend on the facts of each case.
In the non-unionized context, adjudicators have upheld the principle that a single act of misconduct on the part of an employee can constitute sufficient grounds for dismissal where the employee's misconduct is so serious that it interferes with and prejudices the safe and proper conduct of the employer's business.
For example, in an oft-cited Ontario case, the Ontario Superior Court of Justice upheld the termination of a management employee charged with possession of child pornography. Given the heavy publicity surrounding the criminal charges, the company's many philanthropy projects directed towards young children in the community, and the fact that the employee was often interacting with clients, the Court found that the continued employment of the employee would be harmful to the employer's business and reputation.
Broadly speaking, the case law demonstrates that direct evidence of damage to an employer's reputation is not required. Rather, adjudicators will consider the employee's criminal conduct, the nature of the offences, the nature of the employer's business and the nature of the employee's responsibilities within that business, and may be satisfied, by way of inference or conclusion drawn from all the circumstances, that continued employment would be seen negatively by the public.
In other words, arbitrators have found that an employer is not obliged to prove injury to its general reputation by placing before the tribunal specific objective evidence of damage to that reputation by virtue of a parade of witnesses. The tribunal itself will exercise its own judgement as to what a fair-minded and well-informed member of the public or relevant constituency may think in the circumstances.
Furthermore, when assessing the nature of the offence, the responsibilities of an employee and their impact on an employer's reputation, employees working in trust-sensitive positions such as teachers, police officers and health-care workers may face an increased probability of an adjudicator upholding discipline for off-duty conduct. However, the assessment of the employee's role and responsibilities alone will not be sufficient in upholding discipline.
Finally, once the existence of a sufficient nexus between the off-duty conduct and the workplace has been established such as to justify the imposition of some form of discipline, the assessment of the particular type of discipline will depend on the usual application of aggravating and mitigating factors. These include the employee's length of service, previous disciplinary record, employer rules and policies and how they have been enforced, genuine remorse, bona-fide apology, provocation, and honesty during the investigation.
A legal minefield
In closing, given the often highly publicized nature of criminal allegations, the impact they may have on an employer's reputation and the complex competing interests and duties that arise in such situations, employers are well-advised to seek legal advice when assessing their response to their employees' off-duty conduct.
In fact, in addition to the issues discussed above, other considerations may arise such as an employee's refusal to participate in the employer's investigation by fear of incriminating himself or herself in the criminal proceedings, human rights considerations and the employer's duty to accommodate, as well as an employee's request for unpaid leave pending his or her period of incarceration. All these considerations will need to be managed and carefully assessed by management.
Judith Parisien is a member of Fasken's Labour and Employment Law group in Ottawa. She focuses on management side labour law and employment litigation, and advises clients on a variety of labour and employment matters.