By Graeme McFarlane

Overtime is finished and the home team suffers a heartbreaking loss.  The season of hopes and dreams comes to a disappointing end. Later, the news reports civil unrest and rioting.  Images of looting, burning cars and attacks on innocents fill the airways.  You feel saddened and angry watching as the behaviour of a few tarnishes your city.  As you speak to your friends, you learn that your frustration and feelings are widely shared.

The next day, you arrive at work to a dozen voice mail messages and an equal number of emails.  All have similar titles, “Have you seen the front page of the newspaper?”  Hurriedly, you rush to the lunch room and pick up a copy.  The image makes your jaw drop.  Your new apprentice covers the full page, and he is holding a burning lighter to a rag stuffed into the gas tank of a police car.  Never did you think that one of your employees would be an active participant in yesterday’s madness.

Once back in your office, you start going through your messages.  Each has seen the picture and are calling to ask what you intend to do.  Some are from customers who are expressing concerns with your company and its hiring policies.  Your boss has also called; the tone of her message is crystal clear.  You need to do something fast to deal with the situation.

You hastily arrange a meeting with the employee and his supervisor.  At that meeting you inform the employee that he is terminated immediately for cause.  You show him the newspaper in support of your decision. At that meeting, he denies his involvement, and says the photograph is a fake.  You reject his explanation and you send him on his way.  As he walks out of the room, he says that this is not over.

About a week later, another newspaper headline gets your attention.  It appears that many of the photographs of the so-called rioters were indeed fakes.  People with grudges to bear had cleverly substituted different faces on the actual rioters.  The newspaper in question had unwittingly used one of these fake pictures.  You’ve made a dreadful mistake and only wonder what will come next.

The above scenario is not far fetched.  It is based on real fact patterns coming out of the Stanley Cup riots.  Employers must be extremely careful when reacting to information that comes in from the mainstream media or social media sites.  Also, there are additional restrictions on terminating an employee for off duty conduct.  Even if an employee acts illegally in his off hours, such conduct does not always provide the basis on which an employer may terminate that employee for just cause.

With respect to riot type behaviour, there are three main areas that may affect a business: employees who have been publicly identified as participating in illegal activities; employees who have behaved inappropriately in social media (by blogging, posting, tweeting etc.); or employees who are charged or convicted of a crime.

If an employer is to act when faced with an employee’s alleged illegal activity, two things need be done.  First, the employer must be able to prove that the employee committed the alleged act.  Second, it must be able to show a connection between the alleged act and its business.

If an employer cannot prove that the conduct occurred, it will not be able to sustain a cause for termination.  Any court or tribunal will require that an employer investigate all relevant facts before termination.  A police investigation is not a substitute for an employer’s own.  It is extremely important to allow the employee to respond to any allegation.

As in the example above, what seems obvious at first glance can sometimes be illusory.  There is rarely a need to act immediately.  Take the time necessary to do a thorough job.  If you believe that an employee needs to be removed from the workplace, you can suspend that employee pending the results of your investigation.  However, compensation may be due if the results of that investigation clear the employee of wrongdoing.

The general rule is that an employer cannot control an employee’s off duty behaviour except if that behaviour may significantly affect its business.  Using our example as a base, there are two main ways that this nexus could be established.  First, the conduct itself is related to the employee’s work duties.  For example, consider a security guard looting a store or a fireman engaged in arson.  Second, the employer’s reputation will be damaged if the identity of the rioter is connected to its business.

Given the widespread media coverage regarding riots, it may be easier to prove harm to reputation.  However, it must be remembered that the Human Rights Code prohibits discrimination against employees for criminal convictions that are unrelated to their employment.

Even in situations where emotional reactions are strong – look before you leap.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Fall 2011)