Class 21 - Off-Duty (Mis)Conduct

Question 1

OPSEU v. City of Ottawa

Answer 1

Facts: Grievor (water distribution employee) stole from the City over at least a 7-year period by periodically disconnecting the water meter at his home

> Was there just cause for discipline?
Was the penalty of termination appropriate?

Question 2

Off-Duty Conduct

Answer 2

There is a long-standing understanding that employees are entitled to private lives and that employers have no authority or jurisdiction over what employees do in their private lives, except if such conduct harms legitimate business interests

Question 3

To discipline for Off-Duty Conduct, an employer must prove

Answer 3

The employee engaged in misconduct

There is a nexus between off-duty conduct and the workplace

The employer’s interests were harmed by the employee’s off-duty conduct `

Question 4

To establish the connection between conduct and the workplace, consider:

Answer 4

• NATURE of employer’s operations
• TYPE of work the employee does
• CHARACTER of conduct at issue

There are some special exceptions (I.e. government workers)

Question 5

The following may be considered to harm the employment relationship, depending on the circumstances

Answer 5

Undesirable activities directed toward the business/management (I.e. harassing a supervisor, criticizing an employer)

Working in competing business

Illegal/immoderate consumption of substances

Some criminal convictions

Some personal matters

Social Media Use

Question 6

Discipline for Off-Duty Conduct

> the “Millhaven Fibres” test

Answer 6

In a unionized environment, must show one of these:

1. harm’s company reputation or product
2. prevents employee from performing satisfactorily
3. leads to refusal, reluctance, or inability to work with co-workers
4. serious breach of criminal code
5. places difficulty on company to function properly

Question 7

Test for harm to reputation

Answer 7

What would a reasonable and fair-minded member of the public think if apprised of all of the relevant facts.

> Would the continued employment of the grievor, in all of the circumstances, so damage the reputation of the employer as to render that employment impossible or untenable?