Love in the workplace is a hot button topic. It is often splashed across the front page of the newspapers, the captivating scandal in television shows, and may even appear in our own personal lives. Various studies estimated that between 30% to 50% of workers have engaged in their romance at work. Although the numbers per study differ, the studies all conclude that love in the workplace is common and near impossible for employers to avoid.
Romance at the office poses a potential issue not only for the people engaging in these activities, but also their fellow co-workers. It can cause interpersonal disruptions, including jealousy, and poor morale. It is also an alluring and distracting topic, which could lead to poor performance and, at the extreme, lead to allegations of discrimination or harassment. But when it comes to employment law, what are the risks and what are your rights?
For employers who have enumerated policies limiting or disallowing romantic relationships at work, employees who violate said policies may justifiably be terminated for cause. Given its prevalence, having a spring fling at the office against policy may not alone be enough to justify a termination, but the circumstances surrounding such a relationship may be.
For instance, in Reichard v Kuntz Electroplating Inc., 2011 ONSC 7460 the Court found an employer was justified in terminating a 24-year employee with cause due to willful and continuous engagement in a romantic relationship against company policy. In this case, the employer had a company policy that in the event an employee had a romantic relationship with a coworker, the employees were to tell their immediate supervisors of the relationship. Mr. Reichard, a manager, did not advise his supervisor of his relationship with a subordinate employee and denied the relationship to his supervisors when asked. Even though the romantic relationship did not cause any problems for the employer, and all parties agreed that Mr. Reichard was otherwise an exemplary employee, the employer successfully argued there was cause to terminate his 24-year employment due to the breach of trust and prejudice to the employment relationship.
Even for employers without specific policies against romantic relationships, employees who become involved with a co-worker may still be putting their employment at risk.
The duty of good faith and fidelity is an implied term in every employment contract. This duty is to “facilitate the proper function of the employment contract” and require both employers and employees “ not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue..”, as stated by the Ontario Court of Appeal in Spendlove v Thorne, Ernst & Whinney, 1999 CanLII 3814, citing Malik v Bank of Credit and Commerce International SA, [1997] 3 All E.R.1.
This broad duty includes the duty of avoiding conflicts of interest. A conflict of interest may arise when an employee has an “interest sufficiently connected with his professional duties that there is a reasonable apprehension that the personal interest may influence the actual exercise of the professional responsibilities.” Cox v. College of Optometrists (Ontario) (1988), 1988 CanLII 4750 (ON SC), 65 O.R. (2d) 461 (Div.Ct.), leave to appeal denied, (1988), 33 Admin.L.R. xliv (C.A.).
Thus even for workplaces without specific policies, employees who carry on a romantic relationship with someone they work with could result in a conflict of interest with their employer, breaching this implied term of their employment. An employee who is placed in a conflict of interest with their employer risks being terminated with cause.
For employers, it is best practice to have specific policies on workplace relationships, which include education and training for employees on how to deal with relationships at work.
For employees, it is best practice to find love outside of the workplace to avoid any potential conflicts of interest or issues, which may arise. Although sometimes romance is unavoidable, it is always best practice to be honest with your employer.
About the Author: Samantha Lucifora is an Employment Lawyer and Senior Associate at Monkhouse Law where she practices Employment, Human Rights and Disability Insurance Law.
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