The recent departure of sports analyst and former NBA player,
While this situation occurred in
- whether the conduct of the employee harms the employer's reputation or product;
- whether the employee's behaviour renders them unable to perform their duties satisfactorily;
- whether the employee's behaviour leads to refusal, reluctance or inability of the other employees to work with them;
- whether the employee has been guilty of a serious breach of the Criminal Code, which renders their conduct injurious to the general reputation of the employer and its employees; and
- whether continuing to employ the employee will cause difficulty in the way the employer properly carries out the function of efficiently managing its work and efficiently directing its work force.1
It is not necessary for an employer to satisfy all of the above elements to justify cause for termination, but any one or combination of these factors must have a sufficient degree of impact on the employment relationship to render the employee's continued employment untenable.
A decision where an
In contrast, Kim v
Based on the Canadian law, it is less than clear that Barnes' conduct would justify just cause for his dismissal if the case played out in
Key Takeaways for Employers
- Have clear written policies that remind employees of the expectations for off-duty conduct and the potential repercussions to their employment.
- Establish a clear internal reporting system that sets out a designated department or person that employees can report to regarding harmful off-duty conduct.
- Take the appropriate steps, which may include progressive discipline, based on the nature and severity of the off-duty conduct.
- Remember that the onus to prove the termination was for just cause rests on the employer. Accordingly, it is important that misconduct be clearly documented to the extent possible, and that the employer is able to demonstrate legitimate and demonstrable harm that the employee's conduct will have on the employer or its workforce.
The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.
Footnotes
1.
2. Kelly v.
3. Kim v.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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