That is a tricky question and depends on context, severity of the misconduct and most importantly whether the misconduct is of such a nature that it can damage the reputation of the employer. Employees owe their employers a general duty of good faith and that includes a duty to not behave in a way which has a detrimental impact on an employer. This duty can include conduct that occurs outside of the workplace and it can include inappropriate use of social media, particularly if the social media makes the connection between the post and the employer. To increase the likelihood that you can terminate for off duty conduct and have an allegation for cause upheld, employers can:
- Make sure that you have a written contract which clearly sets out your expectations for employee behavior both while they are at work and while they are off duty
- Have clear company policies, make sure they are consistently enforced and make sure that they are made known to employees
- For higher level positions or for those positions that are the “face of the company” consider including a morality clause in their employment contract
- If you become aware of concerning off duty conduct, make sure that you do a fair and thorough investigation prior to making the difficult decision to terminate.
Terminating for off duty conduct is a minefield for employers and the cost if you have it wrong can be significant. This is one area where employers are particularly well served in getting legal advice prior to moving forward with the termination.
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