The recent events between CBC and recently terminated employee Jian Ghomeshi made for a big news day! After a few statements and a very transparent post by Ghomeshi, it has been alleged that CBC fired Ghomeshi because his “type of sexual behaviour was unbecoming of a prominent host on the CBC.” No surprise that Ghomeshi is planning on launching a $50 million dollar lawsuit that “will claim general and punitive damages for among other things, breach of confidence and bad faith.”
This raises a number of legal, moral, and ethical questions and all of them can be looked at from a variety of perspectives. We are not involved in any way in the Ghomeshi case and so we won’t make comments on it directly. What it does raise however, are questions for every employer about what control you can have over an employee’s conduct on their own time.
Typically, an employee’s action (of any kind) outside of work hours and away from the workplace is the employee’s business and the employer has no ability to sanction or control those actions. If an employer does want to discipline or dismiss an employee for their off-duty misconduct, they have a number of obligations to fulfill, including:
- Proving that the misconduct did occur through an investigation of some kind
- Demonstrating that there is a real and material connection to the workplace
- Demonstrating that the connection is also substantial and warranted
So what does all this mean? Ultimately it means that that employer has to ensure that the employee did do what the employer thinks they did, that the misconduct of the employee has to be directly connected to the business of the employer and the employee’s work, and that this is not a small, one off incident but in fact a serious infraction that has a strong impact on the employer. None of these are easy to prove without putting a lot of time, effort and resources into the investigation.
In these situations, it is very case-by-case and it is best for employers to confer with legal and HR expertise prior to making any decisions or taking any action. This blog is by no means legal advice; it is strictly bringing to your attention the different factors that you will want to consider.
Your Engaged HR Assignment: Check out your policies. Do you have an employee misconduct policy that infringes on an employee’s off-duty time? Have you made it clear that a criminal conviction may impact an employee’s continued employment? If you need any assistance in crafting policies that will make it clear to employee’s what your expectations are, then give us a call!