By now, most of you will be familiar with the Ashley Madison scandal where hackers revealed personal information of customers of the infamous website which creates a virtual marketplace for those interested in engaging in extra-marital affairs. While the focus of the media frenzy has largely been on celebrities and members with government affiliations, the site could be linked to virtually any employer. So what tools do employers have for dealing with any association (via an employee) to this or similar websites ? Could an employee be fired for participating in this site? The answer is of course: 'it depends' .
A helpful starting place is to look at how the courts have treated off-duty conduct of employees. In the foundational case of Re Millhaven Fibres Ltd v Atomic Workers Int'l Union, Local 9-670 [1967] OLAA No 4, the [Tribunal] pronounced the following test:
... if discharge is to be sustained on the basis of a justifiable reasons arising out of conduct away from the place of work, there is an onus on the Company to show that:
- the conduct of the grievor harms the Company' s reputation or product;
- the grievor' s behaviour renders the employee unable to perform his [or her] duties satisfactorily;
- the grievor' s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
- the grievor 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 conduct] places difficulty in the way of the Company properly carrying out its functions of efficiently managing its Works and efficiently directing its working forces.
The subsequent jurisprudence in this area has generally held that an employer need not demonstrate all of the above-noted criteria. Any one factor may be sufficient to warrant discipline or dismissal, although the connection to the workplace should be "real and material" . Further, an employer does not need to demonstrate actual harm to their reputation, however the concerns of the employer "must be both substantial and warranted."
In the recent case of City of Toronto v The Toronto Professional Fire Fighters' Association, Local 3888, Arbitrator Elaine Newman confirmed that the basic question to be applied is whether "a reasonable and fair-minded member of the public, if apprised of all the facts, [would] consider that the grievor' s continued employment would so damage the reputation of the Employer as to render that employment untenable?"
In assessing the reputational risk posed by an employee' s conduct, a court or tribunal would likely consider a multitude of factors including the nature of the business and the specific role of the employee in question.
Although, in this specific case, details from the hack make it possible to establish a link between the individual and employer (for example, through the use of an employee' s work email), this may or may not pose a risk to the enterprise and its ability to carry on business.
Additionally, unlike cases where an employee has disseminated harmful comments on a social media website such as facebook or twitter, Ashley Madison was a supposedly secure website. The analysis may then become whether there is a reasonable expectation of privacy which the employee was justified in relying on.
Lastly, case law in this area has also established that in assessing the proper penalty in these cases, an employee' s apology or candour, and any actions taken after their conduct was revealed may be a mitigating factor. As such, evidence of an employee immediately deleting their profile from the website, or taking steps to mitigate any reputational harm to the employer, could be relevant factor.
In conclusion, there is a substantial amount of grey in this area of the law, especially in its application to this scenario. In light of the above discussion, where an employer is faced with potential reputational harm from an employee' s off-duty conduct, they should engage in a thorough analysis of the actions taken by the employee, and its potential effects, before coming to any decision .
* Editor's note : Christine correctly pointed out that the proper spelling of this phrase is "just deserts" from the verb "to deserve". But the Editor took an editorial decision to use "desserts", to avoid confusion.
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