We posted about this story on our TikTok account and received many comments, some supporting the teaching assistant and others saying that she should lose her job.
Many people have picked up on the point that, as this teaching assistant said when interviewed, “she doesn’t make enough money as a teaching assistant to make ends meet, and her OnlyFans site helps supplement her income.” However, others believed that this was not appropriate for someone teaching young children.
So, can you be fired for what you do when you’re off-duty?
As is often the case, the answer is “it depends”. You can be, but only in limited circumstances.
I have written about this topic many times over the past few decades, as this is not a new issue. Some examples include:
The starting point is that what you do on your own time is your own business. However, discipline can be imposed for off-duty conduct where:
- The employee’s conduct harms the company’s reputation or product;
- The employee’s behaviour renders the employee unable to perform their duties satisfactorily;
- The employee’s behaviour leads to refusal, reluctance, or inability of the other employees to work with him or her;
- The employee is guilty of a serious breach of the Criminal Code, causing injury to the general reputation of the company and its employees; or
- the employee’s conduct makes it difficult for the employer to properly carry out its functions of efficiently managing its work and efficiently directing its workforce.
Even if you can show that the employee engaged in misconduct, that only means that discipline may be warranted; it does not necessarily mean that summary dismissal is justified.
I wrote a book on just cause for dismissal (You’re Fired! Just Cause for Dismissal in Canada) which is updated twice a year. This means I have read thousands of cases on the subject. It is a complicated issue, and the only absolute rule is every case must be considered based upon its own circumstances, which includes all relevant factors. In other words, an employer cannot consider the alleged misconduct in isolation.
The threshold for establishing just cause for dismissal is quite high, as the punishment must be a proportionate response. In assessing whether just cause is warranted, the alleged misconduct cannot be considered in isolation; all relevant circumstances must be taken into account. This is something that comes as a surprise to many: the misconduct is not to be considered in isolation.
Additional factors to be considered include:
- the individual’s length of employment,
- the individual’s disciplinary record,
- the nature of the individual’s position,
- the degree of trust required,
- the individual’s response when confronted with allegations of misconduct,
- any mitigating factors, and
- anything else that relates to the employee’s honesty or trustworthiness or the viability of continuing the employment relationship.
Proportionality is a fundamental principle in this context, and, in many cases, courts will conclude that discipline was warranted but that summary dismissal was too harsh. That said, there are frequent examples of dismissals that are upheld. As I often say, “Just cause is not a lost cause”; summary dismissal will be upheld in appropriate circumstances.
Of course, this is all about dismissal with cause, in which case the employee is not entitled to notice of dismissal or compensation. It is always open to an employer to dismiss an employee without cause, if sufficient notice or compensation (often referred to as severance) is provided. That is not true, however, if the employee is governed by a collective agreement.
The Bottom Line
In this case, although the OnlyFans page is unrelated to her job, its existence has clearly had an impact on the employment relationship and has the potential to impact the reputation of her employer. It may also impact her ability to do her job. As a result, there is a credible argument that her refusal to take it down could warrant discipline and, ultimately, dismissal.