Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | JJanuary 21, 2015 with Lorenzo Lisi Ask an Expert Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 Answer: Off -duty employee conduct has become very newsworthy lately, particu- larly in the face of certain high profi le me- dia cases. Much has been said about what an employer can and cannot do, and what circumstances they are permitted to take action against that employee. Employers are placed in a diffi cult position when an employee engages in unbecoming off -duty conduct. ey not only have to worry about the backlash from the conduct itself, but must also be concerned about possible li- ability if they decide to discipline or termi- nate the employee. e legal threshold in proving cause in these circumstances is a high one. In or- der to justify a termination for off -duty conduct, the employer must demonstrate real business harm that could result from the conduct. e leading case, Millhaven Fibres Ltd., sets out the following require- ments that an employer must establish to justify its reason to discipline an employee for conduct outside the workplace: • e conduct of the employee harms the employer's reputation or product • e employee's behaviour renders the employee unable to perform her duties sat- isfactorily • e employee's behaviour leads to re- fusal, reluctance or inability of the other employees to work with her • e employee has been guilty of a seri- ous breach of the Criminal Code, thus ren- dering her conduct injurious to the general reputation of the company and its employ- ees • e conduct of the employee places dif- fi culty in the way of the company properly carrying out its function of effi ciently man- aging its works and effi ciently directing its working forces. While it can be diffi cult for an employer to prove just cause to terminate an employ- ee who has not been convicted of a crime, the Ontario decision in Kelly v. Linamar Corporation off ers helpful commentary for employers. In the Kelly case, Linamar terminated Kelly's employment for cause when it learned that he had been charged with pos- session of child pornography. Despite hav- ing no history of misconduct, and the fact that Kelly was viewed to be a well-respected and trusted employee, the court upheld the employer's decision to terminate. e court agreed with Linamar that as Kelly was re- quired to work with the general public, manage, instruct and discipline employees working under him, and interact collegially with many peers at the management level, he had a duty to ensure that his conduct did not adversely impact any of those activities. By permitting himself to be placed in the position where he would be charged with possession of child pornography, the court found that Kelly had failed to discharge that duty to his employer. While the court went on to state that every case must be considered on its own unique facts, it highlighted several important fac- tors to consider when deciding to terminate an employee for cause for off -conduct duty: • e degree of responsibility exercised by the employee • e company's notoriety and the degree to which, if at all, its reputation in the com- munity will be likely to be aff ected • Whether company equipment was uti- lized in the misconduct. What factored heavily in the Kelly deci- sion was the fact that Linamar was a major employer in its community and had placed special emphasis on its charitable activities in the community directed towards young children. It is also important to note that employ- ers also have responsibilities to their em- ployees, as they have a duty to provide a safe workplace. Under Ontario's Occupa- tional Health and Safety Act and the recent amendment under Bill 168, employers who are aware, or who should reasonably be aware, that domestic violence may occur in the workplace must take reasonable precau- tions to protect an employee from domestic violence. Off -duty conduct by an employee which may breach this obligation may result in further liability to an employer. Off-duty violent behaviour and just cause Question: What legal obligations or liabilities would an employer have if it becomes aware of domestic or other types of violence perpetrated by an employee while off duty? Can the employer use such off-duty behaviour as reason for discipline or dismissal? DISCrImInATIon on page 6» Lorenzo Lisi Ask an Expert Off-duty violent behaviour and just cause Question: have if it becomes aware of domestic or other types of violence perpetrated by an employee while off duty? Can the employer use such off-duty behaviour as reason for discipline or dismissal? AIrD & BErLIS LLP TORONTO Checking a job applicant's social media Question: Can an employer use a job applicant's social media activity as a factor in determining whether to hire her? Does the employer need permission from the applicant to look at social media? Answer: With the advent of social media and online networking sites such as Face- book and LinkedIn, it is easier than ever for employers and recruiters to review job- candidates' online presence when making hiring decisions. is raises new concerns, especially as the use of social media to conduct background checks can provide a potential employer with a range of infor- mation previously unavailable during the traditional hiring process. When recruiting and hiring employees in Ontario, for example, employers must comply with the Human Rights Code. e code prohibits discrimination in employ- ment on the grounds of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of off ences, marital status, family status and disability. While not prohibited, the use of social media when making hiring deci- sions raises a number of risks for employ- ers, especially in relation to the accuracy and collection of information from online networking sites. For example, from the re- view of a profi le picture on Facebook, the potential employer can gain information relating to a candidate's age, family status, sexual orientation, disability or race that is unavailable from a typical resume or job application. If an employment decision is made based on information gleaned from social media, a potential employer can face allegations of discrimination if a candidate alleges that she was screened out of the hir- ing process based on her online presence. In order to protect themselves from such claims of discrimination, potential employ- ers should standardize their recruitment processes. is includes determining the specifi c information they request from candidates and how they receive such in- formation. If employers do chose to utilize social media, it is best to review candidates' online profi les after a face-to-face meet- ing. Further, where possible, the decision- maker with respect to any particular can- didate should not be reviewing a fi le which sets out the results of social media back- ground checks. Separating these allows the decision to be made without reference to the information from an online search. ere have been recent media reports in both Canada and the United States about employers asking job candidates for their Facebook passwords in order to review their online posts. While a potential em- ployer does not need permission to review

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