Terminating an Employee for Off-Duty Conduct
You have become aware that one of your employees has engaged in inappropriate behaviour away from the workplace and outside working hours. For business reasons, you may wish to fire the employee for that behaviour. That leads to the question of whether you can terminate that employee “for cause”.
In order to terminate an employee “for cause” for off-duty conduct, an employer must be able to establish that the employee’s conduct meets one or more of the following criteria:
- The conduct renders the employee unable to perform the employee’s duties satisfactorily;
- The conduct interferes with the efficient management of the operation or workforce;
- The conduct leads to a refusal or reluctance of other employees to work with the employee; or
- The conduct harms the general reputation of the employer, its product or its employees.
Note that the employer must be able to establish a real causal connection between the offending conduct and the interests of the employer. And to do so, the employer must undertake a meaningful investigation of how seriously the employee's personal activities will affect the employer’s interests and reputation, and not rely on unsubstantiated supposition and speculation.
Therefore, the employer should also ask themselves these questions: Has the employer expressed an excessive and undue concern for its public reputation? Does the employee’s job put him in the public eye or does the employee work in the background away from public scrutiny? Does the employer’s stated concern for its reputation outweigh the employee’s right to stay in the employee’s job?
In short, an employer can terminate an employee for cause as a result of off-duty conduct of the employee. But the off-duty conduct must cause real and material harm to the employer.
Invitation for Discussion
If you would like to discuss this or any other business law matter, please do not hesitate to contact one of the lawyers in the Business Law group at Shea Nerland LLP.
Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.