Discipline and Discharge for Off-Duty Conduct

Bonny Mak Waterfall, PartnerNicole Singh, Associate

November 14, 2017

Overview

• General Principles• The Test for Discipline for Off-Duty Conduct• How to Respond to Off-Duty Misconduct• Determining Appropriate Disciplinary Response • The Approach of Adjudicators • Case Studies

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Why Does it Matter?

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General Principles

• Employees are entitled to do as they wish outside of work hours

• Employers have no right to regulate their employees’ conduct outside of working hours by the imposition of discipline

• However, employers may be able to terminate for off-duty conduct where there is a sufficient nexus between the conduct and the employment relationship

• High threshold – even illegal activities may not be grounds for termination for just cause

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The Test

• Employees have a duty to act in good faith – act in a manner that does not detrimentally harm employer’s interests

• Onus is on the employer – 5 factors to consider

• All five need not be met – one may be sufficient to justify discipline

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The Test

1. The conduct of the employee harms the Company’s reputation or product.

2. The employee’s behaviour renders the employee unable to perform his/her duties satisfactorily.

3. The employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him/her.

4. The employee has been guilty of a serious breach of the Criminal Code, thus rendering his/her conduct injurious to the general reputation of the Company and its employees.

5. The employee’s conduct impedes the Employer in properly carrying out the efficient management of the business and its employees.

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What are your options as the Employer?

1. Take no action because there is no nexus between the conduct and the employment relationship

2. Speak to the employee or impose conditions on continued employment

3. Suspend or place employee on leave pending the outcome of the employee’s trial or an internal investigation

4. Discharge or discipline the employee

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Mandatory Employer Actions

Carry out a workplace investigation

• Interview employee

• Interview police and/or crown attorney (if applicable)

• Interview any other witnesses who may have information

• There is a continuing obligation to consider new facts or circumstances which may come to the employer’s attention

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Use of the Results of the Investigation

To determine whether to

discipline and at what level

To explain the Company’s

position to the Union in the grievance

procedure (if applicable)

To defend the Company’s position in arbitration /

wrongful dismissal

proceedings

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To consider: Disclosure or non-disclosure of the investigation report?

Determining Appropriate Disciplinary Response

• Workplace policies preventing conduct• Nature of the employer’s business and reputation

in the community (i.e. potential for negative impact on reputation)

• Employee’s position and nature of responsibilities • Nature of the misconduct • Prior disciplinary record

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Determining Level of Discipline

• Warning• Suspension • Termination

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Do you have just cause for dismissal?

Just cause

?

Mitigating factors• Long service• Clean record• Condonation• Remorse

Aggravating factors• Disciplinary history• Deliberate• Serious incident• Dishonest conduct by employee in trust position

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Special Considerations In the Unionized Context

Review with employee

• Review the documentation with the employee in appropriate surroundings, i.e. In an office without interference

• In the presence of a shop steward, if required by the collective agreement• Clearly identify exceptions to progressive discipline

Employee sign off

• Obtain employee’s acceptance / agreement to the facts and commitment to improve

• Give employee a copy of the discipline notice and warning

Document

• Document the interview, warning/ discipline, the employee’s commitment and the fact that the documentation will be placed on the employee’s file

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After the Investigation: Maintaining the File

Gather any/all related notes, documents, etc. and place in the file• Do not destroy anything

Keep sealed and apart from employee file

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The Approach of Adjudicators

Step 1: Proof

The employer must prove that there is some form of misconduct requiring discipline.

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The Approach of Adjudicators

Step 2: Assess penalty

Seriousness of the particular offencePremeditated, impulsive or provoked actDisciplinary record / progressive discipline Consistency in employer’s approach to discipline

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The Approach of Adjudicators

Step 3:

Mitigating factors applied by arbitrator to substitute different penalty:• Age• Service• Disciplinary record• Remorse• Medical explanation • Family, financial problems• Drug / alcohol dependency

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Special Considerations in Unionized Context

Arbitrator has NO authority to change the collective agreement

For Example: Reinstatement with

back pay Reinstatement (no

back pay) Suspension

Arbitrator has authority to substitute any other penalty for termination or discipline

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Examples of Off-Duty Conduct – Discipline Upheld

• Charged for possession of marijuana

• Misconduct while operating company car outside of work hours

• Assault conviction – domestic violence

• Operating a marijuana grow-up in home

• Sexual assault

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Case Study

A Review of Recent Cases

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Case Study: Toronto (City) v. CUPE, Local 79

Facts• The grievor was a lifeguard at a City pool

• Grievor and group of staff broke into a City pool after hours

• Break-in took place at night, in the dark, with no staff on duty and after facility closed

• Many of the staff were intoxicated

• Drunken swimming, and jumping from a 5 meter diving tower

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Toronto (City) v. CUPE, Local 79

• The grievor admitted that he swam, climbed both a 5 meter and 10 meter platform, and jumped from the 5 meter platform

• The grievor took 3 photos of himself on the diving platform and posted them on Instagram

• Photos were up for approximately 9 hours

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Toronto (City) v. CUPE, Local 79

Employer’s Response: Termination!

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You be the Judge!

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Toronto (City) v. CUPE, Local 79

Decision: Reinstated!

Reasons:• Photo did not compromise the reputation of the City – no

indication that they were taken at the pool • Clean record• “No doubt that he will not re-offend”• No evidence that the public accessed the pictures during

the 9 hour window • Most importantly: discriminatory treatment

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Case Study: CUPE v. Toronto District School Board

Facts:• Grievor worked for TDSB as Site Clerical with the

Language Instruction for Newcomers to Canada Program

• Picked up daughter from a TDSB school • Altercation between daughter and another student• Grievor confronted student

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CUPE v. Toronto District School Board

• The Grievor made numerous inappropriate comments and engaged in inappropriate conduct:– Shouted – Swore, calling student vulgar and inappropriate names– Threatened student stating he is “lucky she is on School

Board property”– Threatened to tell the student’s parents the he smokes drugs

and had sex with another male behind school– Told student she works for TDSB and can find out anything

she wants about him– Referred to the student’s mother using a derogatory term

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CUPE v. Toronto District School Board

• Incident captured on video and later posted on YouTube• Grievor placed on home assignment pending an

investigation • Grievor later charged with:

• Uttering death threats;• Intimidation;• Assault; and • Causing a Disturbance.

• The grievor asked a group of students to fabricate or falsify their account of incident in exchange for McDonald’s

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CUPE v. Toronto District School Board

Employer’s Response: Termination

Reasons for Termination:– Grievor engaged in comment and conduct inconsistent

with that expected of a TDSB employee– Attempting to conceal her conduct by soliciting and

counselling students to provide false evidence– Dishonest and breach of trust during TDSB’s

investigation

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You be the Judge!

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CUPE v. Toronto District School Board

Decision: Termination Upheld.

Reasons:• Potential for Harm to TDSB’s reputation

• It was likely any reasonable fair-minded parent or non-parent who viewed or became aware of incident would be concerned with the TDSB’s continued employment of the grievor

• All of her behaviour resulted in breakdown in employment relationship

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CUPE v. Toronto District School Board

• Grievor’s comments and conduct inconsistent with that expected of a TDSB employee

• She was on TDSB property

• Grievor admitted to asking students for witness statements in exchange for McDonald’s

• Grievor was dishonest in her description of the altercation

• Lack of insight: “I stood up for my daughter, and I got fired for this?”

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Case Study: Keith Gordon Merritt v. Tigercat Industries

Facts• Merritt was a Labourer (truck driver and material handler)

• Merritt was charged with two counts of sexual assault against minors

• Alleged events did not occur in the workplace and did not involve any Tigercat employees

• During meeting with VP, Gordon declined to discuss details of charges, simply reporting they did not involve any employees

• Gordon placed on two week leave of absence

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Keith Gordon Merritt v. Tigercat Industries

• Merritt assigned to a different plant

• Female employee told VP she previously worked at Merritt’s farm where he made inappropriate and sexual comments to her

• The employee made no reference to being involved in the criminal case

• VP met with Merritt and raised concern of employee

• Merritt responded by again saying no employees were involved

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Keith Gordon Merritt v. Tigercat Industries

Employer’s Response: Termination

Reasons:• The impact or potential impact of his criminal

charges on the reputation of Tigercat • Employee’s alleged deceit regarding the

involvement of other employees • previous discipline

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You be the Judge!

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Keith Gordon Merritt v. Tigercat Industries

• Decision: Awarded $41,666 (10 months) in damages for wrongful dismissal.

• Reasons:– Criminal incident was off-duty and did not involve any employees – The VP mistakenly referred to the female employee as being

involved in the criminal case– No independent investigation regarding criminal allegations– Merritt was not dishonest – Merritt was under no obligation to disclose the criminal allegations – “Criminal charges alone, for matters outside of employment,

cannot constitute just cause”

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Keith Gordon Merritt v. Tigercat Industries

• Merritt was general labourer, not a manager, professional or senior employee

• The previous discipline and inappropriate

behaviour relied upon for termination were in no way related to the criminal charges

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Case Study: Maxam Bulk Services v. IUOE, Local 115

Facts:• Maxam is manufacturer and distributor of explosives to clients in mining industry

• Teck Coal Limited is one of Maxam’s biggest clients

• The grievor worked for Maxam as spare lead hand responsible for reporting on any safety concerns or deficiencies

• One day, several sheep got into silo enclosure, consumed some of the chemicals, and died

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Maxam Bulk Services v. IUOE, Local 115

• The grievor’s supervisor called him to advise him of incident

• Grievor, erroneously, believed that Teck was blaming Maxam for the death of the sheep

• A couple of days later, a VP at Maxam received an angry call from Teck’s General Manager concerning Facebook commentary written by the grievor that was critical of Teck

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Maxam Bulk Services v. IUOE, Local 115

• “Sheep deaths at Greenhills under investigation”, which had been posted under the comment “Hear [sic] we go again. Wonder who Teck will blame this time”

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Maxam Bulk Services v. IUOE, Local 115

• The next day the Grievor posted on his Facebook wall:

• Grievor’s comments below the article:

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Maxam Bulk Services v. IUOE, Local 115

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Maxam Bulk Services v. IUOE, Local 115

Employer’s Response: TerminationReasons:• Off-duty conduct has a “real and material” connection

to Maxam• The Grievor had broken trust with the employer;

damaged the employer’s relationship with Teck; damaged Teck’s reputation; slandered his supervisor

• Grievor unable to perform his duties satisfactorily after making comments that denigrate Teck

• Maxam’s senior management team outright refused to work with the Grievor

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You be the Judge!

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Maxam Bulk Services v. IUOE, Local 115

Decision: Reinstated!Reasons:• Potential for rehabilitation in his employment• Mitigating factors:

– Grievor did almost everything that an employee can do to make things right

– No attempt to shift blame or deny facts– Misconduct unlikely to recur – The employment relationship still viable – Previous good record of the grievor– Long service – Isolated incident

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Case Study: Ridley Terminals. Inc. v. ILWU, Local 523

Facts:

• YouTube video posted by person purporting to be an employee of the Employer Titled: “Theft, Corruption, and Treason at a Federal Canadian Port”

• Video included offensive, insulting and disrespectful comments about the Employer, its workplace practices, its Board of Directors and its management team – all of which the grievor knew were untrue and harmful

• Grievor subsequently anonymously posted a hyperlink to video on the Hacking the Mainframe (“HTMF”) website

• Grievor's Post: “Humm? Just looking around Prince Rupert, and this. Interesting read”.” [sic]

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Ridley Terminals. Inc. v. ILWU, Local 523

• Before posting, grievor watched video and knew that it was damaging to the Employer’s business

• Screen-shots from grievor’s post on HTMF were posted on other sites

• The events drew media coverage

• 935 views of the grievor’s original post

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Ridley Terminals. Inc. v. ILWU, Local 523

• During investigation, the grievor admitted to viewing video and posting his comments with the Link on HTMF

• He did not apologize

• Suspended pending investigation

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Ridley Terminals. Inc. v. ILWU, Local 523

Employer’s Response: Termination Reasons:• The employer’s reputation was important to its ongoing success in a

small community• Grievor posted link on popular local website thus enhancing

distribution • The grievor was presumed to have known that his conduct made the

video further accessible worldwide• The grievor knew the video was untrue and harmed Employer• Harm to the Employer’s reputation was substantial

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Ridley Terminals. Inc. v. ILWU, Local 523

• The grievor did not have a proper explanation for his conduct

• The grievor did not accept responsibility for conduct and harm caused

• He waited until conduct was discovered before admitting to it

• The Grievor could no longer work with his supervisors, one of whom he labeled a traitor

• Destroyed trust necessary to continue viable employment relationship

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You be the Judge!

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Ridley Terminals. Inc. v. ILWU, Local 523

Decision: Reinstated!

Reasons:• Termination excessive• Grievor did not author repeat, or communicate the contents

of the Video in his post • He did not release confidential information in his post• He did not identify himself as an employee of the Employer • The post did not name the Employer, any of its employees,

the Employer’s customers or its suppliers

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Ridley Terminals. Inc. v. ILWU, Local 523

• Eight years of service• No prior discipline • Single act of bad judgment• Immediately admitted to posting when confronted• Acknowledged conduct was “really dumb” and

removed post the next day• Accepted responsibility for misconduct

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Questions/Discussion?

Bonny Mak WaterfallPartner+1 416 868 7838bmakwaterfall@fasken.com

Nicole SinghAssociate+1 416 868 3481nrsingh@fasken.com