off-duty conduct and employment law
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05Aug

Can Off‑Duty Conduct Lead to Discipline?

Merritt v. Tigercat Industries: What Ontario Employers Must Know Before Disciplining Off-Duty Conduct

When an employee's off-duty conduct comes to an employer's attention, the instinct is often to act quickly and decisively. That instinct, without the right evidentiary foundation and process, is exactly what leads to costly wrongful dismissal liability. The Ontario Superior Court's decision in Merritt v. Tigercat Industries Inc. (2016 ONSC 1214) is a clear illustration of how an employer's failure to investigate properly and connect off-duty conduct to actual workplace harm resulted in a ten-month wrongful dismissal award for conduct the employer genuinely found serious.

Case
Merritt v. Tigercat Industries Inc.
Citation
2016 ONSC 1214
Court
Ontario Superior Court of Justice
Outcome
Just cause not established; 10 months notice awarded
Issue
Off-duty criminal charges; no workplace investigation conducted

Considering disciplinary action or termination based on an employee's off-duty conduct?

Off-duty conduct can justify workplace discipline but only where a clear connection to the workplace is established and a proper investigation has been conducted. Get legal advice before taking any action.

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What happened

Mr. Merritt was a labourer at Tigercat Industries in Ontario. He was arrested and charged with off-duty sexual offences against minors. The charges were unrelated to his employment and no Tigercat employees were involved. The employer terminated him for cause, citing the criminal charges, reputational harm to the company, alleged dishonesty, and a prior discipline record.

No internal investigation was conducted. The employer's evidence of workplace impact consisted largely of hearsay and an unidentified employee complaint with no supporting documentation. The Court found that just cause was not established and awarded Merritt ten months of wrongful dismissal damages.

Why the employer's just cause defence failed

Failure 1

No investigation was conducted

The employer made no attempt to investigate the impact of the off-duty conduct on the workplace before terminating. This was fatal to the just cause defence. Ontario courts expect employers facing off-duty misconduct to gather evidence of actual workplace impact before acting, not to assume it exists.

Failure 2

Workplace impact was not established

The employer relied on hearsay and a vague, unverified complaint from an unidentified employee. No corroborating documentation was produced. The Court required evidence that the off-duty conduct had actually manifested in or affected the workplace not that it theoretically could.

Failure 3

Criminal charges are not convictions

Charges alone do not establish that misconduct occurred. The employer proceeded as though the charges proved the conduct. Courts require proof on the balance of probabilities that the conduct actually happened before it can ground a just cause termination.

Failure 4

The employee's role was not public-facing or senior

The reputational harm argument was significantly weakened by the fact that Merritt was a labourer with no public-facing responsibilities. The degree of reputational exposure an employee creates for an employer is directly linked to the nature of their role. For front-line or non-public employees, the bar for reputational harm justifying termination is higher.

Failure 5

Prior discipline was unrelated and disproportionate

The employer relied on a prior discipline record to support a cumulative just cause argument. The Court found the prior discipline was unrelated to the off-duty conduct and could not be used to elevate an otherwise insufficient cause to the termination threshold.

The fundamental principle this case reinforces is that off-duty conduct must be connected to actual workplace harm before it can justify discipline or termination. A criminal charge even a serious one does not automatically constitute grounds for dismissal. The employer must do the work to establish that connection through a proper investigation with documented evidence.

The legal test for off-duty conduct in Ontario

Step 1: Did the conduct occur?

Establish on the evidence that the conduct actually happened. Criminal charges are allegations, not proof. The employer must be satisfied on a balance of probabilities that the conduct occurred before proceeding to the next step.

Step 2: Does it connect to the workplace?

Identify a real and demonstrated connection between the off-duty conduct and the employment relationship. This typically means harm to the employer's reputation in its market, impact on workplace safety or operations, or impaired ability to perform the role. The connection must be specific and documented.

Step 3: Was a proper investigation conducted?

Conduct a fair, documented investigation that gathers evidence of workplace impact, presents the employee with the specific allegations, and gives them a genuine opportunity to respond before any decision is made. An investigation that relies on hearsay or unverified complaints will not support a just cause finding.

Step 4: Is the response proportionate?

The disciplinary response must be proportionate to the nature and degree of workplace harm established. Immediate termination for cause requires evidence of serious, unacceptable conduct with a direct workplace connection. Lesser responses may be appropriate where the harm is less severe.

Your obligations under OHSA when off-duty conduct affects the workplace

Where off-duty conduct manifests in the workplace through harassment of colleagues, social media posts shared among staff, or conduct at a work-related event Ontario's Occupational Health and Safety Act may require you to respond regardless of whether a formal complaint has been made. This obligation runs in parallel with the just cause analysis and must be met through a properly documented investigation.

Investigate incidents of workplace harassment even where they originate from off-duty conduct, as required under the Occupational Health and Safety Act
Conduct the investigation impartially and document each step, including who was interviewed, what evidence was reviewed, and what conclusions were reached
Keep the investigation confidential and ensure the affected employee has an opportunity to respond to specific allegations before any decision is made
Communicate the outcome of the investigation to the relevant parties in compliance with your workplace harassment policy

Are you facing a situation involving an employee's off-duty conduct and considering disciplinary action?

The strength of your position depends entirely on the evidence you gather and the process you follow. Our team advises employers across Ontario on workplace policies, off-duty conduct, and disciplinary procedures. Get advice before you act.

Get Legal Advice Or call us: 1-800-771-7882

Practical takeaways for Ontario employers

Never terminate for cause based on off-duty conduct without first conducting a documented investigation that establishes actual workplace impact
Criminal charges are not proof of misconduct establish on the evidence that the conduct actually occurred before relying on it to justify termination
The reputational harm argument is weakest for non-public-facing, non-senior employees tailor your proportionality assessment to the employee's actual role and degree of public exposure
Do not rely on hearsay or unidentified employee complaints as the evidentiary foundation for a just cause termination corroborate all allegations with documented evidence
Where OHSA harassment obligations are engaged, conduct and document a proper workplace investigation regardless of whether you ultimately proceed to discipline
Ensure your off-duty conduct policy clearly defines what conduct is covered, how it connects to workplace standards, and what the investigation and disciplinary process looks like

Questions about off-duty conduct, workplace investigations, or disciplinary procedures in Ontario?

Our team advises employers across Ontario on workplace policies, off-duty conduct, harassment investigations, and disciplinary decisions. Contact us for a confidential consultation before taking action.

Call us at 1-800-771-7882 or fill out the form below and we will be in touch.

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. ©

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