as mechanisms to enforce and discipline for
breach of these expectations, up to and including
termination for just cause. These
policies must be properly administered to
ensure that they form part of employees’
terms of employment.
3. REMINDERS OF COMPANY
EXPECTATIONS
As with all company policies, it’s prudent
to ensure that expectations regarding offduty
conduct are periodically relayed to
employees in the form of workplace seminars
or refreshers, with the attendance of
employees documented. These sessions
will serve to remind employees of the contents
of company policies and enhance the
employer’s ability to enforce them.
4. CONSISTENT ENFORCEMENT
OF POLICIES
It’s a basic principle within human resources
that workplace policies be applied consistently
to all employees. This equal application to
all employees will provide a defence to any
future claims that the employer condoned
prior breaches and that, accordingly, any new
breach of the policy should not be enforced
respecting the behaviour in question.
5. CONDUCT AN INVESTIGATION
While in some instances, an employer may
be justified in taking swift action to terminate
an employee for off-duty conduct, for
reasons such as preserving public image
and mitigating damage to its reputation,
it’s always a safer course of action to ensure
that a proper investigation is conducted
before steps are taken. An employee
may be placed on paid non-disciplinary
or unpaid disciplinary leave – depending
on the underlying circumstances, severity
of the misconduct and degree of publicity.
Taking the necessary precautions and
providing an employee with the requisite
due process will increase employer’s prospects
of having a termination upheld by an
adjudicator.
CONSIDER CAREFULLY
Although dismissal without cause with
the appropriate severance package is an
option available to employers at any time
(provided it’s in compliance with human
rights legislation), decisions to terminate
for just cause on the basis of off-duty conduct
must be carefully considered.
Despite the fact that in the age of social
media, discipline or termination of
employees for off-duty conduct is becoming
a more prevalent and accepted course
of action, employers must tread carefully
in making these decisions. Proactive steps
should be taken by companies to better
equip themselves to handle off-duty conduct,
and the competing interests of the
employee’s right to privacy versus the employer’s
legitimate business needs must be
weighed and scrutinized to ensure that a
termination is justified on the facts. n
Kathryn Hordienko is a lawyer at Fillmore
Riley LLP in Winnipeg.
policies & procedures
52 ❚ OCTOBER 2015 ❚ HR PROFESSIONAL