Just Horsing Around: When Off-Duty Conduct Becomes Cause to Terminate
The ever pertinent question of when off-duty conduct will constitute just cause dismissal was recently considered by an arbitration board in Prince Edward Island (Canadian Union of Public Employees v A Nursing Home Inc.).
An individual was terminated for cause after pleading guilty to a charge of assault. The charge was the result of the individual ‘horsing around’ with his friend’s 15-year-old son, repeatedly attempting to pull down his pants and ‘accidentally’ touching the son’s groin area. He was later arrested for sexual interference. The Judge accepted a plea deal of common assault, and he was sentenced to 60 days in jail and probation for two years. Notwithstanding his plea of guilty, the individual stated he did not intentionally do anything wrong.
The individual was employed as a resident care worker at a nursing home, providing personal care to vulnerable seniors. The individual did not inform his employer until after the conviction. He was placed on paid administrative leave pending investigation and later terminated for cause. The employer stated the termination was a result of his guilty plea to a criminal offence that was ‘sexual in nature,’ a concern it would impact their reputation and licence. The Union filed a grievance.
The parties agreed that health care workers should be held to a higher standard of conduct due to the nature of their work. However, they differed in the characterization of the assault (whether it was sexual in nature or ‘simple’ assault) and consideration of off-duty conduct.
The majority of the arbitration board dismissed the grievance, finding the termination justified in the circumstances.
Writing for the majority, John P McEvoy, QC was critical of the individual’s differing characterization of events at the arbitration as compared to the agreed statement of facts from the criminal hearing. It was emphasized that re-litigation of criminal culpability is not permitted at arbitration. In any event, the Chair stated it was neither reasonable nor appropriate conduct for a 40 something-year-old man to attempt to pull down a 15-year-old’s pants.
McEvoy considered whether the discipline was justified for off duty conduct, citing the factors from Re Millhaven Fibres Ltd. and O.C.A.W., Local 9-670,  O.L.A.A. No. 4, and whether the grievor’s conduct:
- harms the employer’s reputation;
- renders the employee unable to perform his duties satisfactorily;
- leads to refusal, reluctance or inability of the other employees to work with him;
- whether he has been guilty of a serious breach of the Criminal Code (impacting the general reputation of the Company and its employees); or
- whether his conduct impacts the ability of the Company to efficiently manage its work or efficiently direct its working forces.
The approach should be contextual, and not all factors need to be met.
McEvoy found that the nexus between the off-duty conduct and the job was clear and sufficient to justify dismissal. The negative impact on reputation was of key concern even though actual harm need not be proven. McEvoy found that the grievor’s conviction for assault would ‘reasonably raise real concerns for a reasonably informed member of the public.’ This was especially relevant in the context of a nursing home with vulnerable residents and no continuous direct supervision of employees. There was a clear nexus between the nature of the individual’s role in providing personal care to vulnerable seniors and the nature of the assault with a vulnerable 15-year-old person.
In summary, this case shows that Arbitrators continue to take a contextual approach when considering off-duty conduct and its nexus to the grievor’s job. The nature of the employment and the grievor’s duties remain significant, especially when the off-duty conduct involves criminal activity. Field Law’s Labour and Employment Group can help employers navigate issues surrounding employee off-duty conduct and the impact on the workplace.