A termination for cause for employee off-duty conduct was recently upheld by the Supreme Court of British Columbia in Meneray v British Columbia Society for the Prevention of Cruelty to Animals, 2023 BCSC 442 [Meneray].
In Meneray, the employee worked for the British Columbia Society for the Prevention of Cruelty to Animals (“BC SPCA”), as a Special Provincial Constable. While off-duty, the employee was involved in an incident with a cyclist who was allegedly riding his bicycle all over the road and yelling at pedestrians while holding a small animal under his arm. The cyclist crashed into the employee’s vehicle, which led to a physical altercation between the employee and the cyclist. The employee had a dashcam video recorder on his vehicle that recorded the incident.
The employee posted a photo from the dashcam footage on his Instagram account, which showed the employee holding the cyclist by the throat. The employer asked the employee to remove the post. The employee refused and proceeded to post a series of photos from the dashcam footage and a video clip of the incident on his Facebook account. At the time of posting online, both the employee’s Instagram and Facebook accounts identified him as an employee of the BC SPCA, and the Instagram post could be viewed by the general public.
The BC SPCA conducted an investigation into the misconduct and terminated the employee’s employment for cause. The employee challenged the termination, arguing among other things, that he was performing his duties by protecting the small animal the cyclist was holding.
B.C. Court upholds termination
In upholding the termination, the Court found that the employee had posted about the incident on social media in a boastful manner and that since the employee’s social media accounts identified him as an employee of the BC SPCA, the posts had the potential to damage the employer’s reputation, as well as the trust placed on the employee as a Special Provincial Constable. Further, the off-duty conduct resulted in the employee losing status as a Special Provincial Constable, a requirement for his position with the BC SPCA, thereby frustrating the employment relationship.
Although it is generally accepted that employers have no interest in the activities of employees outside of working hours and away from the employer’s business, there is an important exception where the employee engages in off-duty conduct that has a direct connection to the employee’s position or the employer’s operations.
The onus rests on the employer to prove an employee’s off-duty conduct, demonstrate a real and substantial connection between the conduct and the workplace, and demonstrate that the employer’s interests were harmed by the employee’s conduct.
A real and substantial connection
To demonstrate a real and substantial connection to the workplace, the nature of the employee’s duties, the employer’s expectations for the employee’s conduct, the history and quality of the employee’s conduct, the seriousness of the employee’s conduct, and the impact of the employee’s conduct on the employer’s operations and reputation will all be considered. If a real and substantial connection can be established between the employee’s off-duty conduct and the employer’s operations, discipline may be justified.
As discussed in Meneray, an employer’s interests may be sufficiently harmed where the employee’s offensive off-duty conduct is posted on social media accounts that identify the employee as working for the employer, or where the employee’s off-duty conduct frustrates the employment relationship.
To understand more about the potential impact employee off-duty conduct may have on your workplace, please contact a member of our labour and employment group.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.