Discipline for misconduct while socializing with clients

The extent of off-duty misconduct and potential harm to the employer
By Colin Gibson
|Canadian Employment Law Today|Last Updated: 02/06/2019

Question: Can an employer discipline an employee for off-duty behaviour that occurred while socializing with a client after their business was completed?

Answer: The employment and arbitral case law establishes a separation between an employee’s working and personal lives. An employer can only discipline an employee for off-duty behaviour that affects the employer’s legitimate business interests. Depending on the circumstances, conduct that occurs while socializing with a client could fall within that category.

The law on off-duty misconduct developed in the unionized context, and has been adopted by the courts in dealing with non-unionized employees. The general rule is that an employer must establish a connection between the employee’s off-duty conduct and his employment in order to justify discipline. According to a leading case, Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670, the conduct must either damage the employer’s reputation, affect the employee’s ability to perform her duties, cause other employees to refuse to work with her, or inhibit the employer’s ability to manage and direct its business. An employer may discipline an employee if any one of these factors is satisfied.