Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
A recent CBC article about an Education Assistant fired for having an OnlyFans Account sparks termination debate over off-duty conduct. This article delves into the complexities of Ontario Employment Law in relation to off-duty conduct. We help answer when out of work behaviour is grounds to fire or impose other disciplinary action.
Off-Duty Conduct and Employment Law
Ontario Employers usually regard an employee’s off-duty conduct as a personal matter. However, if such behaviour impacts the workplace, it could lead to termination. Termination based on off-duty actions often requires meeting one or more criteria:
- Reputational Harm: Actions that could damage the employer’s image may lead to dismissal. For instance, a high-profile employee involved in a public scandal can harm the company’s image.
- Business Conflicts: Off-duty behaviour that conflicts with the employer’s interests can be cause for dismissal. An example is an employee promoting a rival company.
- Workplace Disruption: Actions that disrupt workplace relationships or hinder job performance can justify termination. A feud between two employees affecting work harmony illustrates this.
- Inability to Perform Duties: Such as a delivery driver losing their license from a DUI.
- Legal Breaches: Off-duty illegal actions, especially related to one’s job, can result in dismissal. A bank employee involved in fraud exemplifies this.
- Policy Violations: If employees breach off-duty conduct policies set by the employer, it may lead to termination. Employers must communicate these policies, and employees typically consent via contracts or handbooks.
- Contract Breaches: Termination can occur if off-duty conduct breaches employment contracts or agreements.
Understanding these grounds helps both employers and employees navigate off-duty conduct implications.
Assessing Off-Duty Conduct for Just Cause for Termination
It’s essential to note that Just Cause termination for off-duty conduct is a complex area of law. Employers must respect employees’ human rights, privacy, and freedom of expression. If an employee thinks they faced unjust termination because of their off-duty behaviour should consult with a legal counsel. Employers considering termination should also consult counsel. Ontario employment law litigation is complex, expensive and risky.
To decide if a dismissal has just cause or if it’s wrongful, employers or employees need to evaluate various factors. These include the employee’s tenure, disciplinary history, job nature, required trust level, reaction to misconduct allegations, and any mitigating circumstances.The punishment must be proportionate to the misconduct, and employers cannot consider the misconduct in isolation.
The Case of the Education Assistant with an OnlyFans Account
The school district employed Kristin MacDonald as an education assistant since 2015. In April, the school district learned that MacDonald, under the pseudonym Ava James, had been posting adult content for approximately a year on her OnlyFans account. It directed her to remove the account and delete all adult content.
MacDonald refused to comply. She highlighted her dedication to her primary job while arguing that she needed her OnlyFans account to supplement her income. Claiming her earnings were insufficient at just $1,000 bi-weekly after deductions, she pushed for better pay for education assistants and called for reducing the stigma around sex work.
Ultimately, school board terminated MacDonalds’ employment. It listed, among other things, the alleged sexualization of the school environment and her actions in media interviews that they claim linked her roles as an education assistant and adult performer, as a primary reason for their decision to fire her.
Off-Duty Conduct: a Legal Analysis
The justification for terminating MacDonald for cause hinges on the direct impact of her off-duty conduct on her workplace, her communications to the public through the media, and any contractual or collective agreement provisions that might apply. Both the school district’s concerns about potential harm to its reputation and MacDonald’s rights to personal freedom and expression outside of her job are valid considerations.
Several key considerations emerge that may influence whether her termination for cause was justified:
- Relevance to the Workplace: One fundamental question is whether an employee’s off-duty conduct in fact negatively impacted the workplace. The School District cited her alleged “sexualization of the school environment” as one of the reasons for her termination. If her online activities directly impacted her role as an education assistant or created a disruptive environment at the school, there might be a stronger case for termination.
- Use of Pseudonym: MacDonald used a pseudonym, Ava James, for her OnlyFans activities, indicating an attempt to separate her online activities from her identity as an educational assistant. This distinction could be a significant factor in determining whether her online actions should have implications for her primary employment. On the other hand, it may constitute an admission by MacDonald that the conduct was inappropriate for an education assistant because she felt the need to operate under a pseudonym.
- Media Interviews: The school district also cited her media interviews, in which she seemingly connected her roles as an education assistant and an adult performer. If MacDonald did make explicit connections between her two roles, this could blur the lines between her off-duty conduct and her role at the school, potentially strengthening the case for her termination.
- Previous Conduct and Performance: MacDonald mentioned that she had never been the subject of complaints regarding her interactions with students. Her past performance and conduct at the school, if consistently positive, might weaken the argument for her termination based solely on her off-duty conduct.
Proportionality and Discipline
If an employer decides discipline is necessary, they must show that the chosen discipline matches the severity of the misconduct. Termination for cause stands as the “capital punishment” in employment law. When an employer opts to fire an employee for cause due to off-duty behaviour or comments, they need to balance the misconduct’s gravity with the penalty given. Employers ought to weigh if there are other viable alternatives to firing that can appropriately address the employee’s behaviour.
Termination Without Cause
Even without establishing “just cause,” employers in non-unionized settings can choose to terminate without cause. Typically, these employers can end an employee’s contract without cause, provided they adhere to the employment agreement’s specific terms and either give reasonable termination notice or offer payment in place of notice.
In conclusion, employers concerned about an employee’s off-duty conduct should not act rashly. Even where an employee’s conduct or comment is highly publicized, the employer must consider whether there is actual damage to its business interests or significant damage to its reputation, and whether the conduct in question is sufficiently connected to the employment relationship. An employer seeking to terminate an employee for cause should conduct a thorough investigation to satisfy itself that the relevant criteria are met before proceeding with terminating for cause.
Employers must also consider whether the conduct resulting in discipline is related to a protected ground under relevant human rights legislation. Discipline for off-duty conduct that is associated with a protected ground may result in a finding that the employer has discriminated against the employee.
In all circumstances, employers can help protect themselves by establishing clear policies outlining the type of conduct that is prohibited and the form of discipline employees will face if they breach the policy. Social media and other public comment policies have become commonplace.
When in doubt, employers should contact a lawyer for advice on how to proceed and how to mitigate their risks.