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KNOW YOUR RIGHTS - Discipline for Off-Duty Conduct?

The Correctional Service of Canada’s Standards of Conduct and Code of Discipine states: “An employee has committed an infraction if he or she acts, while on or off duty, in a manner which may bring discredit to the Service or affect his or her continued performance with the Service.” [our emphasis]

Everyone understands that an employer has the right to impose reasonable rules governing conduct in the workplace. But what about off-duty conduct? How far can an employer intrude into the private lives of its employees?

Like many other facets of the employer-employee relationship, the right of an employer to regulate off-duty conduct has evolved over time. In a case decided in 1949, an arbitrator upheld the termination of a female employee of the International Silver Company for having given birth to a child “out of wedlock”. It was, he said, in the best interests of the company (employing as it did a considerable number of female workers) to maintain a reasonable moral standard among its workforce. That same arbitrator later upheld the termination of an employee of a large forestry company who, in a profoundly intoxicated state, assaulted his supervisor at a wedding reception.

If two similar cases were heard today, we might reasonably anticipate the same result in respect of a drunken assault. But, we would certainly not expect the same result as the International Silver case from 1949. That’s because contemporary thinking presumes that an employer “is not the custodian of the character or reputation of its employees”, as one arbitrator so succinctly put it. Standards have evolved and so, too, has the employer-employee relationship.

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In cases concerning off-duty conduct, arbitrators and adjudicators now generally apply the “Millhaven test”, so called because it was first articulated in a case involving an employee of Millhaven Fibres Limited. That test can be best described by using that arbitrator’s own words. He wrote:

If discipline is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Employer to demonstrate that the employee’s conduct meets one or more of the following criteria:

  1. The conduct renders the employee unable to perform his duties satisfactorily.
  2. The conduct interferes with the efficient management of the operation or workforce.
  3. The conduct leads to a refusal or reluctance of other employees to work with him.
  4. The conduct harms the general reputation of the Employer, its product or its employees.

If one or more of these questions can be answered in the affirmative, then the employer is properly concerned with the employee's conduct even if it occurs away from the workplace and outside working hours.

The Public Service Labour Relations Board (PSLRB) relied on the Millhaven test in rendering a decision in favour of an Institute member who had been terminated by the Correctional Service of Canada.

The member had been charged with several infractions of the Criminal Code, all of them related to off-duty conduct. To avoid a long and costly trial, he entered a guilty plea to one count of uttering threats against another person.

The Correctional Service of Canada had based its decision to terminate on the standard set out in the first paragraph above. The member’s conduct and conviction, it said, would likely bring discredit to the Service.

Where criminal offences are involved, it is not uncommon for an employer to invoke the fourth criterion of the Millhaven test – damage to reputation.

But arbitrators are starting to challenge employers on this. Now, they ask these questions: Has the employer expressed an excessive and undue concern for its public reputation? Does the employee’s job put him in the public eye or does he work in the background away from public scrutiny? Does the employer’s stated concern for its reputation outweigh the employee’s right to stay in his job?

Arbitrators now insist that employers show there is a real causal connection between the events that occurred when the employee was not on duty and the interests of the employer. They are required to undertake a meaningful investigation of how seriously the employee's personal activities will affect their interests and reputation, and not rely on unsubstantiated supposition and speculation. Ultimately, an arbitrator must balance the competing interests of the employer and the employee, and it has been held that any interference with the employee's private affairs must be proportional to the interest of the employer that is at stake.

Thus, in ordering the Correctional Service of Canada to reinstate the member to his substantive position and to reimburse all lost pay and benefits, the adjudicator stated:

There must be some proof that the criteria in Millhaven Fibres apply, as, generally speaking, employers have no authority over what employees do outside of their working hours. Employers must prove some link between events that occur during off-duty hours and the workplace. I do not believe, in the facts before me, that the employer has proven that a link exists. It is insufficient merely to state the employer’s reputation has been harmed; there must be some evidence to prove it. As stated earlier, absent that essential link, [the grievor’s] off-duty behaviour is beyond the CSC's control and any discipline imposed for that behaviour cannot stand.

The Attorney General has filed an application for judicial review of this PSLRB decision in the Federal Court. We will report on the Court’s decision in the next issue of Communications Magazine.

Contributors: Jim Bart, Regional Representative, Edmonton Office and Martin Ranger, Employment Relations Officer.


Publish Date: 10-APR-2008 03:06 PM