Given the massive public outcry following the recent Vancouver Stanley Cup riot, many employers are feeling pressure to deal with employees who were caught in photos or videoed at the riot. The question becomes this: if a “misbehaving” employee was seen participating in the riot – or even worse, possibly committing an illegal offence – does an employer have the right to terminate that individual?

The answer is…maybe.

B.C. Human Rights Code & Conduct

In general, an employer cannot fire an employee for conduct that is not committed at work or that is unrelated to the work. Moreover, the B.C. Human Rights Code prohibits firing based on any criminal conviction that is unrelated to the employment.

However, an employer can attempt to establish that an employee’s conduct is inherently tied to the employment relationship, and that an employee who commits flagrantly disrespectful conduct outside the workplace has breached that relationship. For example, if the employee works as a bank teller and the employer discovers that the employee was elsewhere convicted of theft, this could be grounds for termination with cause, as the employee’s trustworthiness is a pivotal part of his or her role in working for a bank.

Company Reputation if Employees Videoed at the Riot

An employer may also have grounds for termination for cause if an employer can establish that the employee’s conduct hurt the employer’s business or reputation. For example, in a CBC news story, Sales Manager Patrick Almeida of Burrard Acura in Vancouver advised that he received a rash of emails, telephone calls and complaints after one of his employees was caught on a widely distributed video of the riot, running out of a store while carrying apparently looted merchandise. Given the number of customers stating that they would not do business with Burrard Acura in light of the employee’s conduct, Almeida fired the employee.

Hindsight is twenty-twenty, and the riot should be a learning opportunity for employers.

Implementing Workplace Policy

Specifically, employers should consider implementing a formal workplace policy relating to their employees’ off-work conduct. A well-written policy can provide a stronger basis for termination with cause if an employee acts in violation of the policy, which the employee has agreed to be bound by as a term of his or her employment. An example of such a policy might read as follows:

We must maintain the kind of corporate conduct and achievement that will keep us and our successors proud to be employees of the Company and will continue to give us a competitive advantage.

It is the policy of the Company that the Company and its officers and employees shall observe the highest standards of business and personal conduct in their activities that relate to the Company’s business, including:

  1. honesty and candour in their activities;
  2. compliance with the spirit, as well as the letter, of all applicable laws, rules, and regulations;
  3. avoidance of conflicts between personal interests and the interests of the Company, or even the appearance of such conflicts;
  4. maintenance of the Company’s reputation;
    and avoidance of activities that might reflect adversely on the Company.

Such a policy may go a long way in deterring such embarrassing conduct committed by an employee and, if not, assist in the basis for termination. I also recommend that employers consider adding prohibitive language to their employment contracts.

Regardless, an employer can always act in accordance with B.C.’s Employment Standards Act, which provides that non-union employees can be fired without cause, as long as they’re given proper minimum notice pursuant to the applicable legislation. It’s important to note, however, that this legislation only provides for the minimum notice period, and an employer may be liable under common law to provide more notice than is legislatively required, or to pay in lieu.

As always though, considering these and other issues in advance is always a smart strategy for employers.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

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