The debate over the employer’s role in these cases goes something like this: some believe professional athletes/personalities are role models and should adhere to a code of conduct on and off the field. This includes no drugs, guns, or violence. Athletes are well-paid to represent their team’s brand 24/7 and should act like it. In the Rice case, on the other hand, what team owners and fans care most about is winning. So if a player drives his car too fast or gets drunk in a bar, that’s his business. Employers should only care about how people act on the job, and what they do on their own time is irrelevant if it doesn’t affect the company’s bottom line.
If you believe employers should demand minimum standards from their employees on and off the job, when does it infringe on the employee’s privacy rights? And what constitutes inappropriate behaviour? Is alcohol off limits? Cigarettes? Speeding? Swearing? The answer is: it depends.
The most important factor in determining whether off-the-clock behaviour is grounds for termination with just cause is if the employee’s conduct negatively affects the workplace. If there is a connection between the bad behaviour and the company, with some investigating by the employer (and maybe a warning), the employee may be fired for just cause — but not always.
“It has long been the law that where a person has entered into the position of employee, if he or she does anything incompatible with the due and faithful discharge of his or her duty to the employer, the latter has a right to dismiss the employee,” according to the 1995 Ontario ruling in Harrop v. Markham Stouffville Hospital. However, identifying the connection between bad behavior and the workplace is not always as simple as an experienced nurse becoming overly friendly with a patient as in Harrop. In this age of social media, it’s hard for the average person to see how actions occurring in the privacy of the home or at a party on a Saturday night can hurt an employer.
Christine Thomlinson, a partner at Rubin Thomlinson LLP, says: “The impact on the employer’s business does not have to be monetary. It can be reputational. It can involve public relations. It can be morale-related. For example, there are increasing cases of employees saying negative things on social media about their co-workers. That is clearly outside of work but not only does it have a connection, but it can have the impact of making the workplace extremely difficult, if not impossible, for that employee to continue to function in.”
The line between employee rights and employer expectations is a thin one. “The court struggles with trying to balance employee privacy rights and employer’s interest,” says Thomlinson. “Part of the reason is because technology evolves at such a clip, it’s hard to keep up. As society becomes more public, more online, it’s harder for everyone to know where the line between public and private should be drawn.”
Thomlinson says the common law is more effective at dealing with bad behaviour than a general morality clause. Courts have defined what kind of behaviour can bring an employer’s reputation into potential disrepute, for example. “If it’s a financial institution, it can clearly communicate to the employees that it holds honesty and integrity to the highest level. And it expects the employees to uphold these ideals inside and outside of work because it goes to the trust that the public has in them every day.”
But major corporations like banks have tens of thousands of employees. Is it reasonable to expect all of them to adhere to a high standard of “honesty and integrity” 24 hours a day? Can they be fired with just cause for posting racy photos on Facebook if their day job is to sell insurance? “I think it would be difficult,” says Thomlinson, “but I don’t want to say never. It is an objective test but it is very much established through an examination of the employer and the behaviour in question. We look at a whole variety of things. First we see if there are human rights factors at play. And if so, are we dealing with someone who is suffering from some form of disability? And if that is contributing to their behaviour, firing is unlikely an option as it wouldn’t be seen as appropriate accommodation.”
Alison Strachan, of Stewart McKelvey, agrees. “You wouldn’t have just cause to terminate simply because you know someone is beating their wife. Just cause doesn’t allow the employer to impose his or her morals onto the employees — only when those morals would affect the employer in some way. There might be a reason there are not a lot of these cases reported in the employment context, and yet a lot of them in the unionized context: In employment law, there are ways to deal with the problem without relying on just cause.” In other words, employers can get rid of the offender and the bad behaviour by saying “here’s a cheque, there’s the door.”
One relevant Canadian case is 2005’s Kelly v. Linamar Corp. from the Ontario Superior Court. “Here the employee was charged with but not convicted of a crime of moral turpitude — one which most members of the public would find to be repugnant and reprehensible — allegedly committed on his own time and off company premises,” says Strachan. “He was downloading a lot of child pornography, and he was a manager. . . .” The employer, Linamar, supported child-related activities and it had employees with young families, some of whom the defendant managed. So there were links between the downloading of child porn at home and his tasks at work.
Both Strachan and Thomlinson have seen changes in their practices over the years. Thomlinson says employers are more aware of problems that could arise from employees’ access to social media: a negative tweet, for example, or a public rant on Facebook. What used to be said to a few is now shared online to thousands or more.
Strachan says employers have started to look at things a little more deeply than they used to. “In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc., an employee posted ‘vicious and humiliating things’ about a co-worker on Facebook.” His job was terminated as a result. The union tried to get the worker reinstated but the arbitrator refused. Strachan says: “This case appears to be the first decision in Canada where an employee’s public off-duty Facebook comments were seen as sexual harassment creating a poisoned work environment. Prior to this, the Facebook cases were more narrowly about breach of confidentiality policies or threatening co-workers.”
In Ghomeshi’s case, he was unionized and filed a grievance over his firing but he also launched a $55-million lawsuit claiming “breach of confidence and bad faith” against the CBC. The suit claims Ghomeshi shared “confidential information” about his sex life with the CBC that was then used against him. He also sued for defamation, alleging the CBC’s initial statement on his firing created “damaging speculation” and lowered his reputation in the public. Most legal experts opining on the cases in the heated first hours of the drama believe the fired radio host doesn’t stand a chance, but it will be interesting to see how the issue plays out and whether it makes it to court.
On the NFL front, although there was a strong reaction from the public after the video of the elevator punch surfaced, the NFL’s TV ratings went up, stadiums sold out, and merchandise flew off shelves. So is there a link between off-field behaviour of the players and the NFL’s bottom line? “Employers are guided by business concerns and in the NFL, if people are buying tickets and aren’t pressuring the organization, then that really drives behaviour. Until there is sufficient public outcry, the NFL may not have to care,” says Thomlinson.