5. Does It Matter What Your Employees Do Outside of Work? - Off-Duty Conduct and its Implications for Organizations and their Employees

Abstract

This research is among the first to explore the phenomenon of off-duty conduct and its implications for organizations and their employees. This research reviewed cases of offdutyconduct to understand the nature of conduct that faced arbitration, the discipline imposed for the conduct, and the arguments made by the parties about the impact of theconduct on the organization itself. In 1967, a case in Ontario (Re Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670,[[1967] O.L.A.A. No. 4]) set out five factors to evaluate the impact of an employee’s off-duty conduct on the organization. Analysis was based on explicit mention of one or more Millhaven principles. The research included 116 diverse Canadian arbitration cases. Examples of infractions in the sample pool include: theft, drug trafficking, vandalism, assault, tax fraud, murder, sexual assault, drug manufacturing, impaired driving, political protest, and defamatory statements. Trend analyses led to the preliminary conclusion that employers will use reputational damage (one of the five Millhaven principles) as an umbrella defense in arbitration. These findings raise the question of the effectiveness of the reputation Millhaven principle as a valid argument. The initial findings from this research also shed some light on organizations’ reactions to the off-duty conduct of their employees. Further research of interest will include a larger sample with reputation specific grievances to determine if an abnormally large number of reputation-based grievances are allowed.