After-hours conduct can get you fired

Two bus drivers, Steve and Eydie, went out one day after work to test drive Steve’s car. He was selling it and Eydie thought she might be interested. Steve became totally inappropriate with Eydie and made advances. She never complained to her boss as it happened outside working hours and in a setting not related to the job.

She must have told someone, however, because eventually the employer found out and launched an investigation. When asked, Eydie explained that soon after the test drive started Steve reached over to hold her hand. Eydie told him he was a married man and she was not interested in him. Steve suggested that they could be “friends with benefits.” She reiterated that she was not interested in any sort of relationship.

Steve persisted, suggesting they could “fool around.” Again she told him no. When the test drive finished, they dropped off the car and Steve drove her home in his other car. When they got to her house, Steve asked if Eydie was going to invite him in. She said no. She did not want to leave things uncomfortable with her co-worker, so she reached over and gave him a hug and, as she did so, he grabbed her breast. She hurriedly got out of the car and went into her house. A week later she phoned him to see if the car was still for sale and he said he had already sold it. She told him he had made her uncomfortable during the test drive.

When Steve had his interview with the employer, there was a very different story. Eydie seemed upset and he asked if he could hold her hand and she said yes. He denied having any interest in a sexual relationship with Eydie and said he never asked to be “friends with benefits.”

The employer terminated Steve, and since Steve was in a union, he grieved the termination.

At the arbitration he admitted asking if she wanted to be “friends with benefits” but indicated he just thought that meant really close friends. He said that when he asked if she wanted to “fool around,” he didn’t mean anything sexual. Apparently Steve lives on Mars. At his initial interview Steve denied asking Eydie if she would invite him into her house but admitted it at the arbitration — but just for coffee.

The arbitrator believed Eydie’s story and not Steve’s. The arbitrator found that since bus drivers are ambassadors of the city, Steve’s offduty behaviour was worthy of termination. Steve worked closely with the public and was in a position of trust, working unsupervised with vulnerable populations.

Not all off-duty behaviour will justify a termination and a lot of it depends on what position you hold. If the off-duty behaviour can threaten the reputation of the employer given the importance of your position, a termination may be justified. In addition, if you hold a position of some trust, off-duty behaviour can destroy the trust necessary for the relationship to continue.

Ultimately, the adjudicator believed Steve had in fact touched Eydie’s breast and that in itself is sexual assault. Allowing someone who the employer (and the adjudicator) believe was guilty of sexual assault to work alone with vulnerable populations would not be responsible.

Whether or not Steve’s termination would have been upheld if he had not engaged in an actual assault is not known. Steve did not make anything better by lying to the employer during the original investigation. If Steve had stopped after he proposed a sexual relationship and got a no, this would have been a non-event. One is allowed to ask … once. His persistence after getting a clear no, however, became sexual harassment of a co-worker, albeit after hours. The assault, of course, clinched it.