Can an employee be terminated for off-duty sexual misconduct?
On March 21, 2018, I spoke to CBC Radio Halifax’s Information Morning about this question. A Halifax restaurant and its employee had recently parted ways after the employee was accused by a non-employee of off-duty sexual misconduct. Members of the public had taken to social media to demand that the restaurant fire the employee.
Off-duty sexual misconduct, and the resulting reputational harm, might give an employer just cause to terminate an employee, but not necessarily.
If the employee challenged the termination, the employer would have to prove that:
- the misconduct, in fact, occurred;
- there was a sufficient connection to the workplace; and
- discharge was the appropriate penalty.
For example, in a 2016 Ontario case, an employee succeeded in his wrongful dismissal case because his employer had fired him for being criminally charged with off-duty sexual misconduct, but was not able to prove that the misconduct had actually occurred. In fact, the employer had not conducted an independent investigation of the criminal allegations. As the judge in that case said, “[c]riminal charges alone, for matters outside of employment, cannot constitute just cause.” This would also be the case where there is an allegation of off-duty sexual misconduct that did not result in criminal charges: the allegation alone cannot constitute just cause for discharge.
The Ontario judge also said that off-duty misconduct can only constitute grounds for termination in limited situations: “There must be a justifiable connection to the employer or the nature of employment,” such as negative publicity resulting in harm to the employer’s reputation in the community. The judge found that the employer in that case was not able to prove that it had suffered damage to its reputation.
I was asked in the CBC interview what employers should be doing in these sorts of cases. My answer was: be proactive. Employers should seek out training now on dealing with complaints of sexual misconduct – both on-duty and off-duty – confidently, fairly, promptly and thoroughly so that when a complaint does happen, they are not reacting ad hoc. How employers react will affect the well-being of their employees, their reputation, and the confidence of the rest of the workforce in management’s ability to provide them with a safe, healthy and fair workplace.
You can listen to my full interview with CBC Halifax’s Information Morning below.