Oakes & Blokes

Disciplinary Sanctions for Conduct Outside the Workplace

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INTRODUCTION

The ever-increasing use of social media platforms to communicate and interact have posed considerable challenges to the employment relationship. The dissemination of social media postings to convey opinions, beliefs, behaviour or to share other information far and wide have helped blur the boundaries between an individual’s professional and private life.

This blurring of boundaries is fraught with consequences for employees because their online conduct could result in their employer imposing disciplinary measures, leading up to dismissal. It is important for employees to recognize that some actions or behaviours outside the workplace may nevertheless result in their employer being able to discipline them despite the lack of apparent nexus between their conduct and employment. Knowing that could help them avoid unfortunate situations.

HOW EMPLOYEES CAN BE SANCTIONED FOR CONDUCT OUTSIDE THE WORKPLACE

Labour arbitrators and courts have consistently ruled that an employer may impose disciplinary sanctions for events occurring outside the workplace and outside regular working hours if the actions could reasonably be related or linked to the workplace.

In Syndicat des travailleurs et travailleuses Canam Structal (CSN) et Groupe Canam pour son établissement Structal1, an employee blocked a colleague’s car on a public road and damaged it with an iron bar over an unpaid debt. This employee was later fired over his actions. The arbitrator upheld the dismissal, concluding that the debt having been contracted outside work hours was not sufficient enough for the griever’s reprehensible actions to lose their connection to the workplace.

There had already been other aggressive verbal exchanges between the two colleagues, relating to the debt, during work hours.  The arbitrator also underlined that such behavior could not be overlooked on the pretext that the events took place outside the workplace and outside working hours. According to the arbitrator, to allow such behavior to go unpunished would undermine the employer’s authority and would go against the employer’s obligation to ensure the health and safety of its employees. In addition, it would imply that an employee can address a workplace conflict outside of work, with a behavior that is aggressive and out of line, without having to fear any sanctions.  

Similarly, in Resto-Casino de Hull (F.E.E.S.R-C.S.N.) (Section Hilton Lac Leamy) et Hilton Lac Leamy2, a colleague making death threats aimed at a fellow employee was fired. These comments were made online, outside the workplace and outside regular working hours. There were also other altercations which occurred during working hours that led to the dismissal. The arbitrator concluded that this was a hybrid situation, which entailed events linked to the employees’ private lives but which spilled over into the workplace. Hence, even if the comments were made outside working hours, the arbitrator concluded that they were sufficiently linked to the workplace and that they put the health and security of employees at risk. Therefore, the Employer’s intervention was justified and the dismissal was upheld.

In Syndicat national du transport écolier Saguenay –  Lac-St-Jean et Compagnie d’autobus XXX ltée3, a bus driver had been fired after he had sexually harassed and assaulted a minor who accompanied him in the discharge of his duties. The acts that were the basis for the dismissal had happened inside the bus during and outside regular work hours. 

The arbitrator tasked with adjudicating the grievance challenging the employee’s dismissal noted that the reproached acts occurred mostly during work hours as well as outside work hours.

With respect to the bus driver’s actions outside the workplace, the arbitrator remarked that acts employees committed outside the workplace and outside regular work hours were generally beyond an employer’s jurisdiction because employees were entitled to a right to privacy. Accordingly, an employer could only discipline an employee for acts committed outside the workplace if the conduct of the employee damaged the employer’s reputation or if it constituted a lack of loyalty or honesty. 

The bus driver’s conduct with the minor met that requirement. A company tasked with driving children and teenagers to school would haves severely damaged its reputation with parents and schools if word got out about the driver’s conduct. As a result, the arbitrator determined that the dismissal was warranted.

The Syndicat des employé-es du Loews Hôtel Québec c. Loews Hôtel Québec inc4 decision concerns a hotel employee who posted a fake picture on his Facebook page of himself shirtless with two of his female work colleagues. The two colleagues’ eyes were covered by a black stripe, but they were nonetheless recognizable. The employee was terminated by his employer for having posted the picture. The arbitrator concluded that this picture was offensive and damaged the honor, reputation and credibility of his colleagues, who felt ridiculed by this picture. However, the arbitrator considered that dismissal was too severe a sanction in this case as the employee had an otherwise blank disciplinary record, the picture had been posted on a whim without much thought and it was an isolated incident. All these elements militated in favour of progressive sanctions. The arbitrator therefore substituted the dismissal with a 4-month unpaid suspension.

In Syndicat des chauffeurs d’autobus de la Rive-Sud (CSN) c. Société de transport de Lévis5, a bus driver at the Société de Transport de Lévis made a series of troubling comments about cyclists, animals, the elderly and women in strollers in a Facebook “Spotted Lévis” page.  The employer learned about the comments shortly after they were posted because one of their employees who was tasked with monitoring social media saw them. The bus driver was promptly suspended pending an investigation. The comments were so alarming that they were reported about in various news outlets during the driver’s suspension, putting the employer in an embarrassing situation.

The driver was fired shortly after the conclusion of the investigation; his union filed a grievance to contest the disciplinary measure.  Based on the fact that the driver publicly identified himself as an employee of the employer on the Facebook page, caused important reputational damage to his employer, was less than forthcoming with his employers in their meetings, that some of the comments were made at work on his bus and were intentionally shared on a Facebook page frequented by 13 000 persons, the driver’s lack of contrition, the employee’s firing was upheld.

Finally, in Syndicat des travailleuses et travailleurs de la santé et des services sociaux de Sept-Îles — CSN et Centre de santé et de services sociaux de Sept-Îles6, an employee had received a preventive withdrawal and reassignment certificate for pregnant or breast-feeding workers. The certificate outlined that as a result of her pregnancy, she required a reassignment from her current position.  Following a meeting with the employer in which she presented the certificate to a supervisor, the supervisor called the worker to inform her that the employer had found a suitable position. That same day, the worker posted a series of offensive comments and denigrating comments about her employer and her colleagues. She multiplied the attacks several days later.

The worker was summoned to a meeting with her employer where she was immediately dismissed. In the employer’s view, the worker’s comments on her Facebook were shared amongst her 229 friends, the majority of whom were her work colleagues.  They had a detrimental impact on the work climate and would doubtlessly have an impact on the employer’s recruitment efforts. The employer had an important staff shortage as a result of an unfavorable socio-economic situation in the area. The employer was concerned that the worker’s comments would make recruitment efforts even harder. The arbitrator, Denis Tremblay, held that the employee’s dismissal was justified in the circumstances. Her comments had had a prejudicial effect on her relationship with her employer.

THE EMPLOYER RIGHT TO SANCTION FOR CONDUCT OUTSIDE THE WORKPLACE IS NOT ABSOLUTE

While an employer may sanction an employee for conduct outside the workplace, that right is not absolute. It is subject to one important limit.

Under section 5 of the Quebec Charter of Human Rights and Freedoms7, employees have a right to privacy as a fundamental value. In addition, the Civil Code, namely sections 38 as well as 359 to 41 offer similar protections.

In Canadian Labour Arbitration, authors Brown and Beatty outline the following:

“Arbitrators have always drawn a line between employee’s working and private lives.  They often make the point that employers are not custodians of the characters or reputations of their employees.10“ 

The basic rule is that an employer has no jurisdiction or authority over what employees do (including where they live), outside working hours, unless it can show that its legitimate business interests are affected in some way.  The conduct that is being reproached by the employer must have a direct link to the workplace.

  1. Syndicat des travailleurs et travailleuses Canam Structal (CSN) et Groupe Canam pour son établissement Structal (Fidias Morales Perez) 2016 QCTA 736 ↩︎
  2. Syndicat des travailleuses et travailleurs de Resto-Casino de Hull (F.E.E.S.P.-C.S.N.) (section Hilton Lac Leamy) et Hilton Lac Leamy (T.A., 2004-07-15), SOQUIJ AZ-50264309, D.T.E. 2004T-81 ↩︎
  3. Syndicat national du transport écolier Saguenay — Lac-St-Jean et Compagnie d’autobus XXX ltée (T.A., 1999-07-30), SOQUIJ AZ-99141299, D.T.E. 99T-1149 ↩︎
  4. Syndicat des employées et employés du Loews Hôtel Québec (CSN) and Loews Hôtel Québec inc. (Vincent Côté), 2013 CanLII 56312  ↩︎
  5. Syndicat des chauffeurs d’autobus de la Rive-Sud (CSN) c. Société de transport de Lévis (Éric Savard), 2018 QCTA 423 ↩︎
  6. Syndicat des travailleuses et travailleurs de la santé et des services sociaux de Sept-Îles — CSN et Centre de santé et de services sociaux de Sept-Îles (Sabrina Cormier), (T.A., 2013-12-04), SOQUIJ AZ-51060101, 2014EXPT-699, D.T.E. 2014T-262, A.A.S. 2013A-115 ↩︎
  7. https://canlii.ca/t/x8d#secCharter of Human Rights and Freedoms, CQLR c C-12, s 5, https://canlii.ca/t/x8d#sec5 ↩︎
  8. Civil Code of Québec, CQLR c CCQ-1991, s 3, https://canlii.ca/t/z35#sec3, ↩︎
  9. Civil Code of Québec, CQLR c CCQ-1991, s 35, https://canlii.ca/t/z35#sec35, ↩︎
  10. Canadian Labour Arbitration (Canada Law Book, Aurora, 4th ed. – looseleaf), vol.  ↩︎