Question: An employee was intoxicated on his day off and was unable to provide his home address to a taxi driver, so the driver took him to work, asked for the employee's address and took the employee home. Is an incident such as this grounds for discipline or termination? The employee works in the hospitality industry and there may have been customers who witnessed the incident.
Answer: Whether discipline or termination is an appropriate measure will depend on the nature and severity of the employee's conduct when he was on company property. The general rule is an employer’s authority does not extend into the employee's private life. However, off-duty conduct that detrimentally affects the employer's business interests can be subject to discipline and even termination in some circumstances. This situation is unique since the off-duty conduct took place on the business premises.
Extreme intoxication at the workplace, even when the employee is not on the job, could warrant discipline or even dismissal in extreme circumstances. In order for an employer to justify disciplining or terminating an employee for such conduct, it must be apparent that:
•the conduct of the employee harmed the company's reputation or product
•the employee's behavior renders the employee unable to perform his duties satisfactorily
•the employee's behavior leads to refusal, reluctance or inability of the other employees to work with him
•the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees
•the employee’s conduct places difficulty in the way of the company properly carrying out its function of efficiently managing its works and directing its working forces (Millhaven Fibres Ltd. v. Oil, Chemical and Atomic Workers Int'l Union, Local 9-70).
An employer need not establish each and every factor outlined above. With that said, it is incumbent upon the employer to undertake a careful investigation based upon the facts. Establishing a causal connection between the conduct and its negative impact upon the workplace and the legitimate business interests of the company is key. This assessment is very fact specific. The employee's off-duty misconduct should be measured and compared with the nature of the business operations, and the type of work the employee performs while on the job. When all of the reliable and relevant facts are gathered, the employer must carefully assess how seriously the employee's behavior has affected the interests of the company.
Turning to the situation here, an employer in the hospitality industry is likely to be concerned with the effects of the behaviour upon the company's reputation; the effect upon the work environment and relationships with other employees; and the effect upon the employer's ability to effectively manage its business and staff.
Let us assume the employee worked at a hotel. It is clear that much depends on the type of behavior the employee exhibited. Presumably the employee was extremely intoxicated given his inability to recall his own home address. If an employee in this state entered a public area, such as reception at a time when business was bustling, an employer will have clear concern about any impacts upon the company’s reputation. Much will depend upon the severity of the conduct and whether he was in the company of hotel patrons. Was the employee abusive or aggressive? Did he use profanity in the presence of hotel patrons? Did the employee damage company property?
These same questions will be relevant when assessing whether the behavior had the effect of poisoning the workplace environment. If other employees are extremely reluctant or refuse to work with the employee as a result of the conduct, an employer will likely be entitled to take disciplinary measures.
Finally, an employer who manages and runs a company in the hospitality industry will likely wish to take some form of disciplinary action in order to deter not only the employee in question, but any other employees from engaging in this type of conduct. The hospitality industry is customer oriented. As a result, maintaining the reputation of the business is of a central concern. An employer will be justified in diligently and proactively addressing incidents in order to ensure the success of business and management operations.
On a final note, the fundamental principle that a line exists between the employee's work life and private life cannot be underemphasized.
Ultimately, an arbitrator must balance the competing interests of the employer and the employee, and it has been held that any interference with the employee's private affairs must be proportional to the interest of the employer that is at stake. (Brown and Beatty, Canadian Labour Arbitration, 3d ed., 2010).
Any disciplinary measure imposed upon an employee for off-duty conduct must be proportional to the severity of the effects that the conduct in question had upon company interests. If the measure is too extreme, an employer will be vulnerable should their disciplinary action come under an arbitrator's scrutiny.
For more information see:
•Millhaven Fibres Ltd. v. Oil, Chemical and Atomic Workers Int'l Union, Local 9-70,  D.L.A.A. No. 4
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or firstname.lastname@example.org.