The recent events surrounding General Petraeus and his female biographer-turned-mistress have once again ignited hot debate regarding workplace infidelity and the infelicitous actions that workplace relationships sometimes spawn.

Even though adultery is not an offence under criminal law it can still carry legal ramifications.
The United States military is one such example where infidelity is still considered a court-martial offence. For General Petraeus his only recourse was to resign from his duties or be dishonorably discharged.

Here in Canada, our own laws regarding workplace infidelity are much more loosely defined. Some larger institutional employers insert clauses in their employment contracts advising employees that any improper relationships will result in immediate termination. But for the majority of employee contracts, no clear boundaries exist in terms of personal relationships in the workplace.

Can I be fired for workplace infidelity?

It is a difficult question and depending on your employer, you can absolutely be fired for an office affair.

Just like in marriage, employers also demand ‘undivided loyalty’ and when employees put their own interests before those of their employer they are potentially liable for a conflict of interest. That is to say, their office romance is impacting their professional obligations and if it is of such magnitude their employer may have grounds to terminate.

In Canada, the legal threshold is that an employer must demonstrate that an improper relationship has led to a conflict of interest and/or breach of trust. However, this threshold is not easily achieved and difficult to prove without sufficient evidence.

Unfortunately, some employees are terminated without cause despite the fact their employers believe they have sufficient grounds to do so.

Let’s Talk About Termination

It is a term of two solitudes shared by both employers and employees alike for vastly different reasons. Terminating an employee can sometimes be one of the most difficult decisions an employer has to make and a task not to be taken lightly.

As employers often attest, employees today are much more aware of their legal rights when it comes to their employment. As a result, employers are increasingly asking lawyers how to navigate these often treacherous waters of dismissal without future repercussions for their business.

The primary piece of legislation that governs the relationships between employers and employees is the Employment Standards Act. While ambitious in scope, the Employment Standards Act is far from being the final or comprehensive statement on how employer-employee relationships are to be governed. Rather it is a good starting point.

There is a general misconception amongst employers that when terminating an employee they
are only required to ‘achieve’ the standard as set out in the Act.  Frequently, employers mistakenly believe that their severance package is fair and equitable because the package is in accordance with what the Act requires. However, a severance package that complies with the statutory minimum in the Employment Standards Act may, in fact, be insufficient based on common law principles (i.e. a body of law that continues to develop through the decisions of judges in courts and tribunals).

What employers fail to realize is that the Act simply provides the minimum standard of benefits that must be offered to outgoing employees. This minimum does not take into consideration a number of other factors, such as seniority, age, and salary that sometimes substantially increases the ‘minimum’ standard, well beyond what the Employment Standards Act mandates. This discrepancy between the common law and statutory minimum is where employers often get into the most difficulty. In some cases, there can be a distinction between an independent contractor and an employee, which can be important.

How an Employment Lawyer can Help

An employment lawyer is particularly alive to these issues, and careful examination of the constellation of factors surrounding termination of an employee should be considered prior to the issuance of a dismissal notice. Indeed having foresight into the process of termination and some legal consultation can save employers from headaches later on.

The second benefit a lawyer can provide is proper direction in terms of what severance packages should be offered to an outgoing employing having regard to the Employment Standards Act, recent case law developments as well as the particulars of the case. Quite simply an employment lawyer will be able to look at all the relevant factors and provide guidance in terms of what ‘the going rate’ should be for employee severance packages in their particular situation, based on previous court decisions with similar factors.

To be sure, there is no simple formula from which severance packages are calculated, courts consider various factors and attach different weights to each depending on the unique set of circumstances.

Nevertheless, courts will typically give broad consideration to the following:

–  the age of the employee;
–  whether the employee is in a specialized field of work;
–  the employee is a manager or is responsible for some level of supervisory duties;
–  annual earnings;
–  length of employment; and
–  having regard to the availability of alternate employment.

For employers with the unenviable task of terminating an employee, the best advice is to seek advice. Seeking legal advice prior to dismissal is vitally important for the protection of your business financially, the protection of your brand, as well as minimizing the potential for costly litigation. For employees, it may be worthwhile to consult with a lawyer before accepting a severance package even if you have been provided with the statutory minimum for severance under the Employment Standards Act.

For more information about your rights in the workplace and workplace infidelity, contact our employment law department.

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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