After-hours conduct can get you fired

Two bus drivers, Steve and Eydie, went
out one day after work to test drive Steve’s car. He was selling it and
Eydie thought she might be interested. Steve became totally
inappropriate with Eydie and made advances. She never complained to her
boss as it happened outside working hours and in a setting not related
to the job.

She must have told
someone, however, because eventually the employer found out and launched
an investigation. When asked, Eydie explained that soon after the test
drive started Steve reached over to hold her hand. Eydie told him he was
a married man and she was not interested in him. Steve suggested that
they could be “friends with benefits.” She reiterated that she was not
interested in any sort of relationship. Steve persisted, suggesting they
could “fool around.” Again she told him no. When the test drive
finished, they dropped off the car and Steve drove her home in his other
car. When they got to her house, Steve asked if Eydie was going to
invite him in. She said no. She did not want to leave things
uncomfortable with her co-worker, so she reached over and gave him a hug
and, as she did so, he grabbed her breast. She hurriedly got out of the
car and went into her house. A week later she phoned him to see if the
car was still for sale and he said he had already sold it. She told him
he had made her uncomfortable during the test drive.

When
Steve had his interview with the employer, there was a very different
story. Eydie seemed upset and he asked if he could hold her hand and she
said yes. He denied having any interest in a sexual relationship with
Eydie and said he never asked to be “friends with benefits.”

The employer terminated Steve, and since Steve was in a union, he grieved the termination.

At
the arbitration he admitted asking if she wanted to be “friends with
benefits” but indicated he just thought that meant really close friends.
He said that when he asked if she wanted to “fool around,” he didn’t
mean anything sexual. Apparently Steve lives on Mars. At his initial
interview Steve denied asking Eydie if she would invite him into her
house but admitted it at the arbitration — but just for coffee.

The
arbitrator believed Eydie’s story and not Steve’s. The arbitrator found
that since bus drivers are ambassadors of the city, Steve’s off-duty
behaviour was worthy of termination. Steve worked closely with the
public and was in a position of trust, working unsupervised with
vulnerable populations.

Not all
off-duty behaviour will justify a termination and a lot of it depends on
what position you hold. If the off-duty behaviour can threaten the
reputation of the employer given the importance of your position, a
termination may be justified. In addition, if you hold a position of
some trust, off-duty behaviour can destroy the trust necessary for the
relationship to continue.

Ultimately,
the adjudicator believed Steve had in fact touched Eydie’s breast and
that in itself is sexual assault. Allowing someone who the employer (and
the adjudicator) believe was guilty of sexual assault to work alone
with vulnerable populations would not be responsible.

Whether or not Steve’s termination would
have been upheld if he had not engaged in an actual assault is not
known. Steve did not make anything better by lying to the employer
during the original investigation. If Steve had stopped after he
proposed a sexual relationship and got a no, this would have been a
non-event. Steve and Eydie were co-workers and one is allowed to ask …
once. His persistence after getting a clear no, however, became sexual
harassment of a co-worker, albeit after hours. The assault, of course,
clinched it.

This article was originally posted on The Hamilton Spectator, where Ed Canning is a freelance contributing columnist.