Recently, a number of Canadian politicians and high-profile officials at the corporations either had to step down from their office or were terminated by their employers, because they flouted the public health safety protocols by taking a vacation abroad during the Covid-19 pandemic. In this blog, we would like to address this issue and look into whether an employee could be terminated for cause for their public actions or off-duty activities.

CAUSE FOR TERMINATION

As termination for cause is considered as the capital punishment of the employment law, an employer has to get over a high hurdle to establish that it has just cause to dismiss an employee.

Generally speaking, an employer may terminate an employee for cause if the employee has been guilty of

  1. serious misconduct;
  2. habitual neglect of duty, incompetence or conduct incompatible with the duties;
  3. wilful disobedience to the employer’s orders in a matter of substance.

The employer has the onus of proving cause for dismissal on the balance of probabilities. The employer cannot justify the termination for cause until it proves that the employee engaged in the misconduct on purpose and there is no alternative options other than terminating the employee.

PUBLIC ACTIONS/OFF-DUTY ACTIVITIES

It is an implied term of the contract of employment that the employee will not do anything which is prejudicial or is likely to be prejudicial to the interests or the reputation of the employer. Consequently, activities that the employee has done in the public and outside the scope of employment may constitute cause for termination.

Whether the employee’s public actions or outside activities will be sufficient to be cause for dismissal is a finding of fact, which depends upon the nature of the position of the employee and the impugned misconduct.

The NEXUS BETWEEN THE OFF-DUTY CONDUCT AND THE EMPLOYMENT RELATIONSHIP

There is supposed to be a nexus or connection between the employee’s off-duty conduct and the employment relationship.

The employee’s conduct must either

  1. detrimentally affect the employer’s reputation;
  2. cause the employee to be unable to discharge employment obligations properly;
  3. cause other employees to refuse to work with the individual; OR
  4. adversely affect the employer’s ability to directly or efficiently manage the production process.

A HIGHER STANDARD FOR HIGH PROFILE EMPLOYEES

It is very difficult for an employer to meet the evidentiary burden to terminate an employee for cause. However, when it comes to high profile employees, it is advisable that they should be fully aware of their public actions and off duty conduct, because there exists a strong nexus between their off-duty conduct and the employment relationship.

High profile employees often represent the employer’s pubic image and are supposed to have their employer’s interest at heart. They are often held to a higher standard. For example, if a high-profile employee fails to observe the public health protocols and thus puts their employer in a negative light, the employer may have a valid reason to terminate this employee for just cause.

WHAT IF I GET FIRED FOR CAUSE

If you are get terminated for cause, it means that an employer may not have to provide with an employee with common law severance.

As mentioned above, it is a high bar to terminate someone with cause. The reason for the high bar is that in the event of willful misconduct, disobedience or willful neglect of duty that is not trivial, an employee will not receive any termination or severance pay. Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct.

If you are an employee who has been fired for cause due to your public actions or off-duty conduct, you should absolutely reach out to a lawyer to review the circumstances of your dismissal.  You may have a case for wrongful dismissal.

Employment issues in relation to the termination for off duty activities can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are terminated for your public actions or off duty activities, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.