Misconduct Outside Work | Authors: Jordan Reiner & Simon Pelsmakher
It’s that time of year when business and private parties move into high gear. Over the next two weeks, there will be no shortage of feasting and merrymaking. With alcohol flowing freely, some of us will exhibit improper behaviour. If you have never wondered how misconduct outside work impacts your job status, then the reach of social media and public shaming should give you pause.
One simply has to look to politicians for examples of indecorous public behaviour. Prime Minister Trudeau in blackface outraged Canadians even though the incident occurred years before he entered politics. Similarly, consider the public shaming Donald Trump took for sexist and inappropriate comments he made before becoming POTUS. Incredibly, these stories broke during election campaigns where both politicians came out victorious! One could argue that a separate set of rules apply to the transgressions of the rich and famous. However, what if that was you? Would your employer take kindly to such behaviour and how secure would your job be, thereafter?
Can Your Employer Fire You For Misconduct Outside Work?
In most cases, the law does not give your employer the right to fire you for misconduct outside of work. They cannot let you go for behavior that occurred off company property, not on company time and which did not involve another employee. Even if you committed a crime, they must consider you “innocent” until you are tried and found guilty by a court of law.
However, what throws many people off is the salient fact that your employer does not need a reason to fire you. If you do not fit the culture or if they decide they do not want someone with your sensibilities on their team, they can simply fire you without cause. The law requires them to compensate you for the loss with a termination package that reflects your age, position, seniority and employability.
Is Your Severance Package Sufficient?
Always seek legal advice before signing termination papers. A fair severance package should buy you a financial bridge until you find a new job. If you were fired for misconduct outside work, it should have no bearing on your termination package, regardless of how repugnant your conduct was or whether the public shamed you for it.
Furthermore, tight deadlines employers set for you to accept the offer are not enforceable and this is one set of documents you do not want to rush with. Take the time to absorb the details and let an experienced lawyer evaluate it properly for you. Once you sign the release, the law does not allow you to turn back, except in very rare cases.
If your package inadequately reflects your circumstances, you may grieve a wrongful dismissal. You have six months to two years to make a claim, particularly if the package omits items like benefits or a bonus.
Fired For Cause
In our experience, which spans over 35 years, we have witnessed how inadequately some employers understand the law. In egregious situations, your misconduct outside work could become public fodder on national media. If they identify you and your workplace, your employer may rightfully become uncomfortable with their association to you. Some will react all too quickly by firing you for cause.
You need to contact us with urgency when this occurs. The law is irrefutably clear about for-cause dismissals, particularly those that culminate with no severance packages. It sets a high burden of proof on your employer. They must prove that you repudiated the employment relationship and caused irrevocable harm to their reputation. In addition, they must demonstrate that they provided you with warnings to cease your behaviour. They should have also presented you with ample opportunities for remediation. Only at the tail end of this lengthy process could they claim loss of trust and legally succeed in firing you without penalty.
This time of year, alcohol flows freely at office Christmas parties. Over-intoxication at such events put employees in hapless situations. A celebration with colleagues can end with staff members humiliating themselves, disputes between co-workers and even injuries, all in plain sight of your superiors and management. If you are attending an office party this year, do not forget that this is a workplace event and an extension of your working day. Your employer remains responsible for the health and safety of all employees at the event.
Drinking in moderation will ensure the new year does not start as a disaster for you with interpersonal disputes, a human rights complaint, harassment allegations, injuries, negative publicity or worse, getting fired.
Lecker & Associates have represented employees of Ontario for over 35 years. Wrongful dismissal cases remain a cornerstone of our practice. If you find yourself in the unfortunate situation of being fired for misconduct outside work, contact us. We have successfully litigated many such cases and can advise you better than most.
We wish you a safe and happy holiday season.
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