A common inquiry we get about termination for cause relates to actions or behaviours of an employee that took place outside of the workplace. Sometimes these actions or behaviours have led the employer act to terminate that employee’s job.

This blog seeks to provide some clarity with respect to the issue of termination for cause related to an employee’s off duty conduct or actions that took place outside of the workplace. First, we investigate what is termination for cause and when off duty conduct can result in termination for cause. Then, we delve into the issue of social media use and termination for cause as well as whether a criminal charge can reach the bar necessary for termination for cause.

What is Termination for Cause?

Termination for cause occurs when the employer dismisses an employee without providing notice of termination, as the employer has alleged that there is “cause” for the termination. As such, the employee does not receive termination pay or a severance package. The analysis of whether a termination for cause will be held to be valid by Ontario courts is often rather complex and fact-dependent. However, there are some specific factors that are applied to each case with respect to termination for cause:

• the onus to provide “cause” is on the employer;
• the threshold for cause is generally higher if the employee worked from an employer for a long time period;
• the standard for cause under Ontario’s Employment Standards Act, 2000 (“ESA”) requires the employee to be “bad on purpose,” meaning that an employee who is guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer (see O. Reg. 288/01);
• the standard for cause under the common law is simply “just cause,” meaning that the employer does not need to show willful misconduct per se but that the behaviour was simply in breach of the employer’s employment contract; and
• if the employer failed to properly allege cause, then the employee is wrongfully dismissed and then the employee is eligible for compensation such as termination pay and / or severance pay.

For more information about termination for cause, please review our blogs entitled Fired for Cause in Ontario? Just Cause vs. Willful Misconduct and Termination for Cause is Still Possible in Ontario but the Bar for Cause Cases Remains High.

When Off-Duty Conduct Results in Termination

Off duty conduct will constitute any actions or behaviours by an employee that took place outside of the workplace and usually outside of working hours. Generally speaking, an employer becomes concerned about off duty conduct of an employee when that conduct can be linked back to the employer and the conduct will reflect negatively or badly on the employer. For example, the employer may be concerned about reputational damage that an employee’s off duty conduct may create.

However, there is certain criteria that Ontario courts will use to determine whether conduct of an employee that took place outside of the workplace can be used to terminate the employee for cause. The employer has the onus to show a reasonable connection between off duty conduct of an employee and harm to the employer, and this can be done in several ways:

• there can reputational damage to the employer;
• the employee is no longer being able to perform the duties and responsibilities of their job;
• other employees of the employer are no longer are able or refuse to work with the employee due to the employee’s conduct;
• the employer will have difficulty in managing its workplace effectively due to the conduct of the employee; and
• the employee’s conduct outside of the workplace resulted in a concern for the safety of the workplace or other employees.

If the employer cannot show a connection between the off duty conduct and harm to the employer, the employer’s act to terminate for cause will fail and the employee was wrongfully dismissed.

The Social Media Question

Let us look specifically at social use. This is probably the most contentious area of off duty conduct that may result in termination for cause. For example, there are at times even examples of this sort of behaviour that is reported in the news to the general public. We have even written blogs about specific incidents of this taking place. For example, What Can We Learn From Hydro One’s Firing of a Heckler?.

The employer will need to satisfy several things before they move to terminate an employee for cause due to social media use. To be clear, the social media use (usually in the form of a social media post or communication) will usually be something that the employer does not feet comfortable with. However, the social media use must go beyond simply what the employer does not like or maybe not comfortable with.

An employer must experience an adverse reputational impact because of the employee’s social media conduct or online behaviour. For instance, making bigoted, discriminatory, obscene or lewd comments can result in the employee’s dismissal for cause by an employer rather than a social media post that is simply not to the employer’s taste or a bit rude. For example, in the context of social media posts, a post that is objectively discriminatory and / or inciting hatred toward any one group, would be posts that an employer may use to terminate an employee for cause. Further, if the employee’s online behaviour or online conduct is such that it will make it difficult for the employer to carry out its operations or to manage its workforce, the employee’s behaviour may result termination for cause as well.

For more information about this specific issue, please review:

• Terminated for posting comments online?
• Can employees be fired for social media posts?

What About a Criminal Charge?

Similarly to social media posts, simply an employee receiving a criminal charge does not necessarily mean that the employer has the right to terminate the employee for cause. Firstly, there must be a reasonable connection between the off duty conduct (in this case, a criminal charge) and the employer’s workplace. Then the employer must see if the nature of the criminal charge will result in at least one of the reasons set out above.

Specifically with respect to a criminal charge, please note that a charge is an allegation and not the same as the result of a trial where an employee has been found guilty of a crime. It is important that an employer does a proper investigation in order to assess the set of circumstances related to a criminal charge to see what effect there would be in the employer’s workplace. The most crucial aspect of a criminal charge in a lot of cases will be the nature of the charge itself, and the seriousness of the charge increases the likelihood that an employer may move to terminate the employee for cause.

How Can Zeilikman Law Help!

It is necessary for both employers and employees alike to contact an employment lawyer if they have any questions or concerns related to termination for cause. The legal analysis for termination for cause is complex and fact-dependant. An employment lawyer, like the lawyers at Zeilikman Law, can help individuals with these issues by reviewing the unique facts surrounding their own case in order to determine what the best course of action to take.

For more information about this topic and related employment law topics related to termination for cause, please visit our website and read:

• 4 Common Mistakes Employers Make When They Fire an Employee for Cause in Ontario
• Can An Employer Allege Cause After They Fired You?
• Termination for Cause is Still Possible in Ontario but the Bar for Cause Cases Remains High
• Employees Terminated “For Cause” May Still Be Entitled to Statutory Benefits

Employers and employees can contact our office at (905) 417-2227 or online here to schedule their own confidential consultation with Zeilikman Law.