• Retention

  December 6, 2023

So Your Employee is an Anarchist

Employees often mistakenly believe there can be no repercussions at work for what they do during their off-duty hours. However, employers can take disciplinary action, and even decide to terminate employment, in some circumstances, particularly where the conduct has unfolded online or otherwise in the public eye, or where there is, or may be, a connection to the individual’s employment.

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The article below was written after the 2011 Stanley Cup riot in Vancouver, BC. The issues raised remain relevant today.

You’ve all seen the video and still photos of the regrettable events in downtown Vancouver following the Canucks’ Stanley Cup loss. But what if, while watching the news, you spotted one of your employees participating in the mayhem?

The first thing you should probably do, as an employer, is nothing. It is important not to react in a knee-jerk fashion to seeing an employee caught on video smashing a window, looting, setting fires, etc.

Take your time, think about the situation, consider what you’ve seen, and get some legal advice. And remember, in criminal matters, everyone is innocent until proven guilty (even if the video evidence is quite damning).

It may be useful to start from the legal premise that what employees do on their own time is largely their own business, not their employer’s. If, however, their private activities negatively impact their employer’s business or reputation in some manner, then that’s a different matter.

If my employee was caught on video lighting a car on fire while plainly wearing a “Smithson Employment Law Corporation” t-shirt, I might have a reason to be concerned. Or, if that employee is so well known in the community that viewers could be expected to connect him or her with my business, a similar concern might arise.

Similarly, if the employment relationship is one in which observance of the law is a critical element, the employer may have good reason for concern. As an example, if the employee works in a role counseling young offenders on living a crime-free life, his or her actions on the streets of Vancouver might be seen as undermining the employment relationship.

In those instances a disciplinary response, possibly including termination for just cause (in which case no working notice or severance pay would be required), might be justified. This is a conclusion that should only be reached after seeking legal advice about the specific circumstances.

Employers can, of course, terminate an employment relationship on a not-for-cause basis as well (at least in a non-union setting). If the employee’s activities were so offensive that the employer simply wants to be rid of him or her, without worrying about whether just cause existed, the not-for-cause route might be the way to go.

However, doing so will require compliance with the statutory (employment standards) and common law requirements to provide working notice or severance pay in lieu. Though it may not feel right to give working notice or pay such an employee a lump sum on his or her way out the door, the law requires employers to do so unless true just cause for summary dismissal exists.

Even if the employer does comply with its legal notice or severance pay obligations, that isn’t necessarily the end of the matter. Human rights legislation prohibits employers from refusing to employ (or continue to employ) a person who has been convicted of a criminal or summary offence which is unrelated to the employment.

So, going down either a just cause or a not-for-cause termination path against an employee charged or convicted of a crime could result in a human rights complaint of discrimination. That is surely not a result which the employer will have been seeking.

The ideal situation for the employer, if it makes a decision to terminate an employment relationship, is to have the employee go away without suing or filing administrative complaints (such as one alleging discrimination). Achieving that result will take patience and some expert advice for the employer to avoid creating legal problems for itself.

Reprinted with the permission from author Robert Smithson. Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.

Additional information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

This article may not be republished without the express permission of the copyright owner identified in the article.

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