Employees who believe they are immune from discipline for their conduct away from the office are often sadly mistaken. Where off-duty behaviour becomes cause for an employer’s concern, employees shouldn’t be surprised when it follows them back to their desk. Here are some examples.
- Blog postings made on an employee’s own personal time can come back to haunt them. Just ask Linda Clark, who lost her job because her employer, a retirement home, came across a blog she wrote with postings that expressed her disdain for the residents and management. It didn’t matter that Clark had created and maintained her blog at home or that she intended for it to be private; its connection to the workplace was obvious and any member of the public could view it.
- Pictures or postings on Facebook, MySpace or YouTube are fair game for employers’ supervision where indiscriminate content impacts, or potentially impacts, a company’s reputation. It seldom matters when the postings were created or even if the employee doesn’t access these websites from work. If the content can even be construed as having a connection to the workplace, discipline is often upheld by the courts.
- Allegations of criminal conduct occurring away from the workplace can sometimes amount to cause for dismissal. Philip Kelly unsuccessfully sued Guelph auto parts manufacturer Linamar Corp. for wrongful dismissal after it fired him for cause following publicized but unproven criminal charges of possessing child pornography on his personal computer at home. The court agreed with Linamar because of the potential damage to its reputation.
- Where off-duty conduct creates a serious conflict of interest with the work of the organization, discipline can be upheld. In a notorious Canadian case, a CIBC bank teller was fired after her employer learned that she was living with a convicted bank robber. In this case, actual harm was unnecessary; it was the potential for harm that was sufficient.
These examples ought to give employees pause. Canadian courts have little tolerance for employees whose habits expose their companies to liabilities. They can be fired – often without notice.
Daniel A. Lublin is an employment lawyer Whitten & Lublin LLP. He can be contacted at dan@canadaemploymentlawyer.com.
