June 6, 2023

When is Off-Duty Conduct a Fireable Offence?

It’s no great shock that many teachers and education workers have second jobs to make ends meet. There’s no shame in that – everyone’s finances are different, and some may have different needs than others which require a second income. Usually, if this includes driving for a rideshare company, doing food delivery, or working in retail part-time, employers won’t bat an eye.

But what if that second business is selling adult content on OnlyFans?

A recent case out of British Columbia involves an education worker who was a single mother receiving disability benefits.  Her need for additional income is obvious. However, unlike other career choices for a ‘side hustle,’ hers involved selling adult content to online subscribers. While she tried to keep the work discrete, when the school learned of her second business they issued an ultimatum – shut it down, or risk termination.

So what can an employee do when it comes to off-duty conduct, and where are the limits?

The Case

Kristin MacDonald is a 35-year-old single mother who, according to CBC, earns less than $50,000 a year working as a special needs educational assistant in Port Coquitlam, British Columbia. Macdonald claims that while she loves her work, her school salary is simply not sufficient to support her young daughter, so she needed a secondary source of income. 

A former personal trainer, MacDonald saw a business case for setting up an OnlyFans page and began offering subscribers adult images for a monthly subscription of roughly $8 CAD each month. She is adamant that she places limits on her work, such as not allowing school staff to subscribe, and that this is not pornography or sexual services. 

Despite her best efforts to remain discrete, the school learned of MacDonald’s second business and issued her an ultimatum in April – take the page down along with any social media accounts, or risk “disciplinary action up to and including termination.” The employer also told her to stop speaking out publicly once she began doing so, but after consideration, MacDonald has decided instead to take her story public.

Additionally, while MacDonald contemplated taking down the page, she has decided instead to leave it up. She is currently on disability due to spinal surgery and needs extra income in order to care for her family. In her view, she truly doesn’t have a choice. 

The Issues

While MacDonald’s employer has not commented specifically, there are a few separate issues that make this particular case complicated. First, MacDonald is a unionized employee, which puts her employment at a different level of protection. Non-unionized employees can be let go for any reason so long as it is not discriminatory under human rights legislation, but unionized employees generally have greater employment security.

Ultimately though, the question comes down to whether or not MacDonald’s actions interfered with her duties as an educational assistant, or whether there was any overlap that would, in some way, implicate her employer in condoning such conduct. The general rule when implicating employees for off-duty conduct is that the conduct needs to have some nexus to the individual’s employment.

Take, for example, the spat of incidents in recent years of individuals who have verbally assaulted female television reporters while they are live on camera. The behaviour, usually fueled by alcohol, is crass, boorish, and entirely inappropriate. However, it is treated very differently by employers based on whether or not the individual can be identified as an employee. 

In one notable case from several years ago, one such individual was publicly identified as a high-ranking HydroOne employee, and while he had been initially terminated from his role, he was later reinstated at arbitration. In other similar instances, employees have been disciplined more severely when they are caught behaving badly while wearing an employer uniform, clearly connecting them with an employer. 

In the view of most employers, failing to punish such conduct is akin to condonation. This is why employers frequently implement policies that effectively act as a morals clause, and state that conduct which puts the employer’s reputation in jeopardy, even off hours, may be punishable up to and including termination.  

The discipline may be more severe if, even while it occurred off duty, it creates extreme tension in the workplace or potentially an unsafe work environment. If an employee is convicted of a serious criminal code offense for example, or if other employees have stated that they feel unsafe working alongside an employee, that too could mean that an employee’s off-duty conduct has put their employment in jeopardy. 

The Upshot

Legally speaking, the issue comes down to how an employer would want to handle this situation, and the manner of termination that they wish to pursue. To terminate an employee with cause, meaning that they’re not owed any termination or severance pay above and beyond their minimum entitlements under employment standards law, an employer needs to take a contextual view of the situation.

If the employee’s behaviour caused serious damage to the employer’s reputation or created an unsafe work environment where the employer is effectively handed an ultimatum, they may have sufficient reason to terminate the employee with cause. Otherwise though, while termination without cause can be more costly, it might ultimately be the more effective way to take action.

Then again, in cases like MacDonald’s, the presence of a collective agreement can make things more delicate still. In unionized workplace environments, any employee in a similar situation will likely have the support of their union, so employers would be prudent to consult with counsel before making any decisions. 

Of course, seeking counsel before issuing any severe discipline, especially termination is always recommended. An experienced employment lawyer can help advise you of your various options, and the risks and rewards of each. Employment lawyers are a key part of making strategic decisions that not only treat the employees fairly but help protect the overall interests of the business. Contact our office today to set up a consultation.