Issue link: https://digital.canadianlawyermag.com/i/425225
12 EMPLoYMEnT Law By steve morales t he ongoing sex scandal engulfing ex-CBC host Jian Ghomeshi has ignited fresh questions over just how private our private lives really are and whether what we do outside of work can still result in disciplinary action from our employer. While seemingly contrary to personal freedom and privacy rights, it's not unheard of for someone to lose their job or experience other workplace discipline resulting from personal activities. Ghomeshi's case is unique since his status and close association with the CBC brand hold him to a high standard. "If the employee is the face of the company or the branding, and reputation is tied to that individual, that's where off-duty conduct, that is likely to basically harm the corporation, brand or image, can be relied as grounds for a cause termination," says Toronto labour lawyer Connie Reeve of Blake Cassels & Graydon. Most employees, however, who aren't in such high-profile positions aren't held to the same standard and Ontario's employee-friendly labour laws can make it far more difficult to fire with cause. In this province, you're either fired with cause or without. Without cause means it's not disciplinary, such as budget cuts or your job just isn't needed anymore. With cause means you've done something that fundamentally breaches your contract, usually some type of misconduct, negligence, or incompetence. In sufficiently serious cases, an employer can also deny any termination pay, but Reeve says it's a challenge for employers. "An employer can decide to terminate you because they don't like what you did after hours or whatever, but terminating you for cause without any kind of payment, the conduct in context still has to meet a very high standard," insists Reeve . The key word here is context. A specific incident, however bad it may be, may not be enough to justify firing someone without considering the circumstances surrounding the incident. "A decision in a case about whether or not off-duty conduct is going to give rise to terminate for cause will turn on very specific facts of the case," she adds. Those facts are part of what the courts call the "contextual analysis," Reeve explains. "You have to look at all of the factors and whether there's any exculpatory evidence or some explanation that might explain the behaviour and make it likely that won't occur again." It can also include other criteria like the employee's length of service, their particular job, their age, and whether that one action really undermines the continuing employment relationship. She refers to a landmark 2001 Supreme Court decision (McKinley v. BC Tel) that says, "an effective balance must be struck between the severity of an employee's misconduct and the sanction imposed." That "contextual analysis" has led to surprising decisions. For example, Reeve points to a 1995 Ontario case where salesman Kenneth Ditchburn met a client at a strip bar, where both drank for hours and ended up in a fight. Ditchburn was fired days later in what might sound like an open-and-shut case. Ditchburn later sued his employer, who had said he went "way over the line" and "broke company policy." The judge agreed with Ditchburn. He ruled that the incident was "clearly an isolated incident of bad judgment, albeit leading up to a flagrant breach of company policy." Ditchburn didn't get his job back, but was awarded a far more generous termination package than originally offered. An isolated incident, however, is also just part of the overall context. The type of incident and the employee's position can outweigh the unique nature of their act. Aside from high-profile people like Ghomeshi who can become toxic to a brand, senior executives and other decision- makers — particularly those in the financial sector — are also held to high standards since their personal judgment can impact the business and its bottom line. "Courts have been very harsh where people have been given a lot of responsibility . . . employees who have access to investment decisions and discretion around money and big decisions," says Reeve. While upper-level or prominent employees may be more vulnerable, no one is totally immune from on-the-job consequences for their personal actions. Those punishments can depend on many different factors, but your private life is not necessarily totally private. LRG off the hook? oFF ThE CLoCk,