Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N o v e m b e r / D e c e m b e r 2 0 1 4 51 lEgal rEport/lABouR And eMploYMenT T he fiasco of the NFL's reac- tion to players' legal prob- lems filled the headlines lately. The well-publicized video of Baltimore Ravens' player Ray Rice punching his then-girl- friend in the face sparked outrage from millions of people worldwide. In this age of social media, news travels fast and it travels far. That punch in the elevator prompted a wide-scale, emotional public debate over what role the NFL should play in its ath- letes' lives, particularly when they're off the field. And as the magazine went to press, the story of CBC personality Jian Ghomeshi's firing shone a bright Canadian spotlight on the issue of whether someone can be fired for private sex acts taking place off duty. The debate over the employer's role in these cases goes something like this: some believe professional athletes/person- alities are role models and should adhere to a code of conduct on and off the field. This includes no drugs, guns, or violence. Athletes are well-paid to represent their team's brand 24/7 and should act like it. In the Rice case, on the other hand, what team owners and fans care most about is win- ning. So if a player drives his car too fast or gets drunk in a bar, that's his business. Employers should only care about how people act on the job, and what they do on their own time is irrelevant if it doesn't affect the company's bottom line. If you believe employers should demand minimum standards from their employees on and off the job, when does it infringe on the employee's privacy rights? And what constitutes inappropriate behaviour? Is alcohol off limits? Cigarettes? Speeding? Swearing? The answer is: it depends. The most important factor in deter- mining whether off-the-clock behaviour is grounds for termination with just cause is if the employee's conduct negatively affects the workplace. If there is a connection between the bad behaviour and the compa- ny, with some investigating by the employer (and maybe a warning), the employee may be fired for just cause — but not always. "It has long been the law that where a person has entered into the position of employee, if he or she does anything incompatible with the due and faith- ful discharge of his or her duty to the employer, the latter has a right to dis- miss the employee," according to the 1995 Ontario ruling in Harrop v. Markham Stouffville Hospital. However, identifying the connection between bad behavior and the workplace is not always as simple as an experienced nurse becoming overly friendly with a patient as in Harrop. In this age of social media, it's hard for the average person to see how actions occur- ring in the privacy of the home or at a party on a Saturday night can hurt an employer. Christine Thomlinson, a partner at Rubin Thomlinson LLP, says: "The impact on the employer's business does not have to be monetary. It can be reputational. It can involve public relations. It can be morale- related. For example, there are increasing cases of employees saying negative things on social media about their co-workers. That is clearly outside of work but not only does it have a connection, but it can have the impact of making the workplace extremely difficult, if not impossible, for that employee to continue to function in." The line between employee rights and employer expectations is a thin one. "The court struggles with trying to balance employee privacy rights and employer's interest," says Thomlinson. "Part of the rea- son is because technology evolves at such a clip, it's hard to keep up. As society becomes more public, more online, it's harder for everyone to know where the line between public and private should be drawn." Thomlinson says the common law is more effective at dealing with bad behav- iour than a general morality clause. Courts have defined what kind of behaviour can bring an employer's reputation into poten- tial disrepute, for example. "If it's a financial Just how far can an employer go in dictating an employee's conduct outside of work hours? by ava chiSling Unsportsmanlike behaviour mAtthew billington

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