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Can Off‑Duty Conduct Lead to Discipline?
Ontario employers need clarity on how off-duty conduct behaviour outside work hours can still lead to disciplinary action if it impacts the workplace.
This article guides employers through the relevant legal framework, when off-duty behaviour becomes a workplace concern, how to investigate fairly, and the potential legal risks of failing to act.
What Counts as Off‑Duty Conduct That Employers Can Address?
Off-duty conduct becomes a workplace issue when it:
- Impacts employee safety, morale, or work environment
- Becomes known within the workplace, whether through social media, emails, or word-of-mouth
- Creates disruption, hostility, or reputational harm to the organization
Ontario case law confirms that when off-duty behaviour manifests in the workplace, employers may have a legal obligation to respond, potentially including investigation and discipline, even if the conduct occurs off-site or outside business hours.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“Off-duty conduct can raise serious concerns for your workplace, but not every incident justifies discipline. Before taking any action, speak to a lawyer to understand your legal options and protect your business from unnecessary risk.”
What Ontario Employers Must Do to Comply
1. Investigate When Harassment or Misconduct Arises
Employers have obligations under OHSA to investigate incidents of harassment.
2. Conduct Fair, Timely, and Documented Investigations
Ensure investigations are impartial and confidential. Document each step, decision, and outcome, even if the affected employee declines to participate.
3. Evaluate the Workplace Impact
Discipline must be proportionate to how the misconduct undermines workplace dynamics such as team trust, mental well‑being, or organizational safety.
4. Apply Proportionate Discipline
Disciplinary response should align with the severity and impact of the misconduct. Employers must connect off‑duty behaviour to workplace consequences to justify action.
Case Example: Merritt v. Tigercat Industries (2016 ONSC 1214)
In this Ontario case, Mr. Merritt, a labourer, was dismissed after being arrested and charged with off-duty sexual assault against minors. The charges were unrelated to his employment, and no employees of Tigercat Industries were directly involved. However, the employer attempted to justify his termination for cause based on the criminal charges, reputational harm, dishonesty, and a cumulative discipline record.
The Ontario Superior Court found that the employer failed to prove just cause. The Court noted:
- No internal investigation was conducted, and there was no evidence that the charges had impacted the workplace directly.
- The employer relied on hearsay and a vague claim from an unidentified employee, without corroborating documentation.
- The employee was not in a senior or public-facing role.
- Past discipline was unrelated and not proportionate.
The Court awarded Mr. Merritt damages for wrongful dismissal, amounting to 10 months’ notice. It concluded that off-duty conduct, particularly when not connected to the workplace, requires strong evidence before employers may take disciplinary action.
Key Takeaway: Allegations of off-duty misconduct must be backed by clear evidence showing a tangible impact on the workplace. Without that, employers risk legal liability for wrongful dismissal.
“When off-duty conduct crosses into the workplace, whether through gossip, shared content, or impact on morale, employers have a statutory obligation to respond. That response must be measured and based on clear evidence,” says Christopher Achkar, Founder and Managing Lawyer at Achkar Law.
Why Employers Should Act Proactively
Failing to address off-duty misconduct that affects the workplace can result in:
- Legal liability under OHSA, human rights, or employment laws
- Wrongful dismissal or constructive dismissal claims if the conduct is handled improperly
- Damage to workplace culture and trust
- Ministry of Labour scrutiny and potential enforcement action
Taking proactive, documented steps not only reduces legal risk it demonstrates leadership and care for workplace well-being.
Key Takeaways for Ontario Employers
- Off-duty misconduct can justify workplace discipline if it affects the work environment.
- Employers have a legal duty to investigate even without a written complaint.
- Investigations must be documented, fair, and timely.
- Discipline should be linked to workplace harm and be proportionate.
- Ignoring off-duty misconduct can lead to legal exposure and workplace disruption.
How Achkar Law Can Help Employers in Ontario
At Achkar Law, we support employers in navigating off-duty misconduct and related legal risks. Our expertise includes:
- Reviewing and updating disciplinary and off-duty conduct policies
- Conducting neutral workplace investigations
- Advising on legally defensible disciplinary decisions
- Supporting employers through OHSA, human rights, and employment law issues
Struggling with handling off‑duty misconduct or harassment in your workplace?
Reach out today for experienced legal guidance tailored to Ontario employers.
Call toll-free: 1-800-771-7882 | Email: [email protected]
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©
Workplace Law Topics: Workplace Investigations, Employee Terminations and Layoffs, Employment and Labour Compliance, Employment Policies and Procedures, Occupational Health and Safety, Workplace Disputes and Litigation