Nova Scotia CA Opines on Scope of Employers’ Right to Address Off-Duty Conduct

When can a unionized employer discipline an employee for off-duty conduct?

This question is age-old, but is particularly relevant today given the frequency of disputes about off-duty internet expression. The Nova Scotia Court of Appeal issued a decision yesterday that addresses the so-called “nexus test” for employers’ disciplinary jurisdiction. It held that an arbitrator did not err by finding harm to reputation but failing to find a sufficient nexus to the workplace to warrant discipline.

The matter underlying this finding is about a 40-year-old school caretaker who a school board discharged for having a sexual relationship with a 15-year-old girl. The girl was a student of the board, but not at the caretaker’s home school. The relationship was consensual and developed outside the school environment. Based on these essential facts, the arbitrator reinstated the caretaker with a term of suspension imposed for other grounds of misconduct.

Much of the Court of Appeal’s judgment is about characterizing the arbitrator’s reasoning. In the end, the Court held that the arbitrator found harm to the board’s reputation and nonetheless found that there was no nexus to the workplace that justified discipline – i.e., that the caretaker was engaged in private conduct beyond the board’s jurisdiction. It said:

The arbitrator applied arbitral principles that, in the assessment of just cause, introduce mitigating fators for a proportionality analysis of the respective interests of the grievor and the Board.

In other words, mere reputational harm is not enough to support a sanction if the harm is mitigated by privacy-related factors. This is the principle the Court affirmed. It cited a leading Ontario arbitration case that suggests harm to reputation must create a concern that is both “substantial and warranted” to be actionable.

The Court found the arbitrator’s privacy-protective analysis to be reasonable (rather than correct), so the opposing position – that the gravity of harm to reputation goes to penalty rather than the right to sanction is still arguable.

The case is Cape Breton-Victoria Regional School Board v. Canadian Union of Public Employees, Local 5050, 2011 NSCA 9.