Canadian Employment Law Today

March 19, 2014 2 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Employee harassing co-worker or customer outside of work QUESTION: How much jurisdiction or li- ability does an employer have over an employee harassing another employee outside of the workplace? What about an employee who harasses a customer out- side of the workplace? ANSWER: It is often suggested that an employer has no jurisdiction over the off- duty conduct of its employees. However, this is far from accurate. There are many examples of discipline being imposed and upheld for off-duty conduct. In the arbitral context, it has been said that, if off-duty misconduct has a "real and material connection to the work- place," it falls within an employer's dis- ciplinary reach: Ottawa-Carleton District School Board v. O.S.S.T.F., District 25. An early decision — Millhaven Fibres Ltd. — established that such a connection likely exists where the conduct: harms the company's reputation or product; renders the employee unable to perform her duties satisfactorily; leads to refusal, reluctance or inability of the other em- ployees to work with him; constitutes a serious breach of the Criminal Code and is injurious to the general reputa- tion of the company and its employees; or makes it diffi cult for the employer to properly manage its operations and di- rect its workforce. Off-duty harassment of either a co- worker or a customer or client clearly has the potential to fall into one or more of these categories and there are a num- ber of arbitration awards upholding the right of an employer to discipline for off- duty conduct that can be considered or equated with harassment in its various forms: Mount Royal Faculty Association v. Mount Royal University (Board of Gov- ernors), (university entitled to discipline professor who breached university's personal harassment policy by harass- ing co-worker while both were off duty); Memorial University of Newfoundland Faculty Assn. v. Memorial University of Newfoundland (university entitled to dis- cipline professor for sexual harassment of student by professor despite off-cam- pus location; acts of harassment were carried out in the course of an event that was encompassed by university's sexual harassment policy); Chatham-Kent (Mu- nicipality) v. National Automobile, Aero- space, Transportation and General Work- ers Union of Canada (CAW-Canada), Local 127 (Clarke), (disparaging of resi- dents of employer's facility in an Internet blog); Wasaya Airways LP v. A.L.P.A., (disparaging of clients of employer's air- line in a Facebook posting having racial overtones); Alberta v. A.U.P.E., (dispar- aging co-workers and management in a personal blog. The common law also recognizes an employer's right to discharge an employ- ee for off-duty conduct that is likely to be prejudicial to the employer's business. Case law indicates that off-duty harass- ment of both co-workers and clients can fall within that principle. In Simpson v. Consumer's Association of Canada, an employer was held to be justifi ed in terminating a supervisor for off-duty sexual harassment of employ- ees under his supervision. In upholding the dismissal, the Ontario Court of Ap- peal held that "it would be artifi cial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment." In Clarke v. Syncrude Canada Ltd., an employer's termination decision was up- held where the employee had sexually harassed a supplier's employees at and after a cocktail party held in conjunction with a business meeting sponsored by the supplier. The extent of an employer's civil liabil- ity for harassing acts of its employees is less clear. In its traditional articulation, vicarious liability is imposed on an em- ployer for employees' acts that are either authorized by the employer or have a suffi cient connection to authorized acts as to be considered an unauthorized mode of doing that authorized act. However, the Supreme Court of Can- ada cast doubt on the continuing rel- evance of the traditional approach in Ja- cobi v. Griffi ths and Bazley v. Curry. In Bazley, the top court suggested semantic discussions of "scope of employment" and "mode of conduct" did not address the question whether liability should be imposed on an employer in cases where precedent was inconclusive. It held that the proper question to be asked was whether there was a connec- tion or nexus between the employment enterprise and the wrong that had been committed that justifi ed imposition of vi- carious liability on the employer, in terms of fair allocation of the consequences of the risk or deterrence. The Supreme Court identifi ed some of the factors to be taken into account in determining the suffi ciency of the rela- tionship between the employer's creation or enhancement of the risk and the em- ployee's misconduct as follows: • the opportunity that the enterprise af- forded the employee to abuse her power • the extent to which the wrongful act may have furthered the employer's aims • the extent to which the wrongful act was related to intimacy inherent in the employer's enterprise • the extent of power conferred on the employee in relation to the victim • the vulnerability of potential victims to wrongful exercise of the employee's power. In Bazley, the court also addressed the location of the misconduct as a factor in assessing vicarious liability: "The mere fact that the wrong oc- curred during working hours or on the jobsite may not, standing alone, be of much importance; the assess- ment of material increase in risk can- not be resolved by the mechanical application of spatial and temporal factors. This said, spatial and tem- poral factors may tend to negate the suggestion of materially enhanced risk of harm, insofar as they suggest that the conduct was essentially un- related to the employment and any enhanced risk it may have created (for example, the employee's tort occurred offsite and after hours). The policy considerations of fair compensation and deterrence upon which vicarious liability is premised may be attenuated or completely eliminated in such circumstances." Thus, while the potential for an em- with Tim Mitchell Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Norton Rose Fulbright, Calgary Continued on page 6 "It would be artifi cial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction cannot constitute the workplace for the purpose of the application of the law."

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