Employers still have much say in employee conduct outside of working hours

The law of wrongful dismissal has its roots in the out-dated notion of master and servant.

That relationship of submission and dominance is offensive to modern outlooks, but general rules developed in such antiquated concepts are still in use today in wrongful dismissal cases.

For example, the question of how much control a master has over the life of a servant is alive and well. Certainly the employer’s control should be greatest and strongest when employment services are being rendered by the employee: during working hours.

But is the employer’s reach broader than merely the workday?

The general principal handed down from antiquity: if the servant does anything incompatible with the due or faithful discharge of his duty to his master, the master has the right to dismiss him. The misconduct need not be in delivering employment services. If the misconduct is prejudicial or likely to be prejudicial to the interests or reputation of the master, the master will be justified in dismissing the servant.

This general rule from antiquity has two parts:

The employer has the right to dismiss an employee if he or she does anything incompatible. Today, the employer no longer has this unchecked power to dismiss summarily for anything incompatible. A quick look at modern just-cause cases will confirm the many tests the employer is put to by the law to prove the employee has done something incompatible with due and faithful discharge of duty that would justify summary dismissal.

The second part of the general rule from antiquity introduces the concept of employee behaviour outside of working hours, during the employee’s own time. It seems anachronistic that employees’ private lives can come under and employer’s scrutiny.

For evidence that this occurs in the workplace today, see my February column (issue 902; February 6-12, 2007) about employees getting “dooced” by blogging after hours and from home about their employers in a way that affected the employer’s business. See also my March column (issue 906; March 6-12, 2007) about romantic liaisons, in which an employee who had multiple affairs with fellow employees after hours was justifiably dismissed because of the sexualized environment created in the workplace by that employee’s after-hours activities. That environment displaced the affected employees’ devotion to work and caused prejudice to the employer in the conduct of its business. In both the dooced and romantic liaisons situations, the court looked at whether the conduct that was outside the workplace was prejudicial or likely to be prejudicial to the employer’s interests or reputation. In other words, the second part of the general rule from antiquity is alive and well in modern employment law.

Under the second part of the general rule from antiquity, the key test relates not necessarily to the conduct itself, but to how that conduct affects the workplace or the employer’s reputation.

If the conduct outside the workplace is found to have insufficient destructive impact on the workplace or the employer’s reputation, summary dismissal of the employee won’t be justified.

Examples of insufficient grounds for summary dismissal include cases in which:

a member of a company hockey team destroyed hotel property during a hockey tournament;

an employee drank heavily and got involved in a drunken brawl at a Christmas party held away from the company’s premises and outside of normal working hours.

In general, employee conduct outside the workplace that has been deemed to inflict sufficient harm to a workplace or employer reputation includes romantic liaisons, harm to minors in the care of the employer and criminal behaviour. The harm to minors cases typically involve educational employers and non-classroom conduct. For example, a teacher publishes views or conducts activities outside the classroom contrary to the best interests of the children under his or her care.

While the criminal cases typically involve an employee’s criminal offence outside the workplace, the B.C. Human Rights Code prohibits employers from dismissing employees solely on the basis of criminal conviction in which the offence is unrelated to the employment.

The irony of employment law today is that the employer is left with less power to regulate the employee through just-cause dismissal during working hours, but retains significant power to regulate the conduct of employees in non-working hours.

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