Can I fire an employee for their conduct outside of work?
A: In short, yes: workers can be fired for “off-duty” conduct and severance entitlements will always depend on the facts and case law.
There are two general categories that apply here: terminations with “just cause” and “without cause”.
Just cause: The classic just cause example is one where a worker commits a serious crime outside of work. In such case, the employer may lawfully claim there is just cause to summarily dismiss the worker, without having to legally provide any notice or pay in lieu that would otherwise be owing (assuming provable facts and case law support it). The employer may be justified in doing so even when the alleged off-duty misconduct is not tied to work, or the workplace, at all. In some cases an employer investigation will be warranted before the employer determines what, if any, discipline is proportionate, and legal advice is always called for.
Without cause: It is also possible for employers to dismiss non-unionized workers for conduct, statements or opinions the worker engaged in outside of work, on without cause or no-fault basis. In this case however, the employer definitely, without a doubt, must provide all statutory severance entitlements to the worker, as well as common law notice or pay in lieu of notice (severance) which can be quite large amounts.
Either way, employers should really consider getting legal advice from a lawyer specializing in employment law before proceeding with discipline or terminations, no matter what the facts are, just to be sure the business is on solid legal ground.
It may seem unfair that workers can be fired, particularly for relatively less serious off-duty conduct, but keep in mind that there are strong statutory rights (human rights law, employments standards and safety laws) that protect workers from, for example, being punished for raising some concerns, whether the statements are made at work or off-duty. Still, in an era where we understandably feel we have less and less privacy at work, even without cause terminations for less serious off-duty conduct may feel unfair.
Please feel free to email or call me if you are a worker or an employer facing a difficult situation like this.
This article was originally published by The Hamilton Spectator.
